Native and Natural Born Citizenship Explored (Re-opened for limited business)

Time to visit the concept of Quo Warranto and its applicability to the President or Congress. Some rumors have started that Congress used Quo Warranto to remove Albert Gallatin as an elected Senator. Nothing is further from the truth. The discussions in Congress suggest that Quo Warranto does not apply to Constitutional Officers whose election, appointment and removal are explicitly described in the Constitution.

But first some Congressional words about Quo Warranto:

Mr Thurman: It seems to mo that these considerations abundantly show that the idea of contesting the office of Chief Magistrate of the United States in any court whatsoever is not to be entertained for a moment. I do not, therefore, agree with the Senator from Vermont that there can be any such contest. I do not think that the framers of the Constitution intended that the title of the persons declared in the joint assembly of the two houses to be President should remain in doubt for a single moment, but that, on the contrary, from the time he was declared to be elected all men should respect his title, for ho was declared elected pursuant to the Constitution of the country. There might be error in deciding who was elected; every body of men is liable to commit error; courts are liable to commit error as well as congresses; the decision may be in favor of the wrong man ; but the public safety and peace require that that decision, when once made, shall be final and irrevocable.

Mr. Frelinghuysen: It seems to me, Mr. President, that there is one idea which the Senator from Ohio has entirely omitted, which is conclusive upon this subject,; it certainly is to my mind. I think the twelfth article of the amendments to the Constitution settles who has jurisdiction over this question. It does not do so in express terms, but it does do so by necessary implication. It says that the President of the Senate is to open the certificates and the votes, which are then to be counted in the presence of the two houses. That by necessary implication to my mind gives the jurisdiction over this subject to the two houses; and if the Constitution does give it to them, we cannot by law give it to the judiciary of the country.

Source: United States congress, The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; Publisher D. Appleton and company, 1877
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It follows from this that if an election of President or the right of an individual to the office of President can be contested in a judicial court of the United States, that contest must be begun in one of the courts inferior to the Supreme Court, and can only reach that court by Congress conferring upon it appellate jurisdiction from the decision of the inferior court. And furthermore, it follows, as the inferior courts have no jurisdiction whatsoever except such as Congress may confer upon them by law, that whether they should have jurisdiction in such a case or not would depend wholly npou the will of Congress, and therefore it would be just as one Congress might decide or as another Congress might decide whether there should be this judicial contest at all. Was it intended that the title to the office of President of the United States should depend upon a contest in a court, which contest itself is wholly dependent upon the fluctuating opinions of Congress? One Congress might pass a law clothing the Supreme Court of the United States with power to entertain a quo warranto in such a contest, and just when that contest was at its height, and before any decision had been rendered upon it, the next Congress might repeal the law conferring the jurisdiction. Was any such thing as that ever intended by the framers of the Constitution?  It seems to me not. It would be a very extraordinary constitution that would thus leave it to the fluctuating will of Congress whether or not if the first place there should be any judicial cognizance of the question at all, and if the next place that would allow Congress one day to provide for this judicial cognizance and the next day or the next week repeal the law that gave the court jurisdiction.

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§ 468a. Writs of quo warranto in the District Courts. The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States. The District Courts of the United States have jurisdiction of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States.” * The Revised Statutes provide that “whenever any person holds office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution, the district attorney for the district in which such person holds office shall proceed against him by writ of quo warranto, returnable to the Circuit or District Court of the United States in such district, and prosecute the same to the removal of such person from office..”8 This applied to persons disqualified from holding office by the Fourteenth Amendment, whose disabilities had not been removed.

Source: Roger Foster, Treatise on Federal Practice, Civil and Criminal, Including Practice in Bankruptcy, Admiralty, Patent Cases, Foreclosure of Railway Mortgages, Suits Upon Claims Against the United States: Proceedings Before the Interstate Commerce Commission and the Federal Trade Commission, Callaghan & company, 1921

Full text at Justia

My quick reading is that the US Supreme Court rejected the Quo Warranto proceedings based on the ‘interested party’ clause.

“The language of the Code, supported by the history and policy of the law, sustains the proposition that one who has no interest except that which is common to every other member of the public is not entitled to use the name of the government in quo warranto proceedings.”

The Court also addresses ’statutory officers’ which are officers appointed by the President. As far as I understand, the United State President is not a ’statutory officer’ but rather a  “constitutional officer’ who can only be removed through impeachment

The Constitution, Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

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319. Failure of Incumbent to Qualify.—Where an office exists under the law, and a person is elected or appointed to hold it and duly qualifies and enters on the discharge of his official duties, he is a de facto officer, and his acts are valid, though he may not possess all the necessary qualifications for the office. 8 It has been pointed out that the eligibility of an officer sometimes is as difficult of ascertainment as his actual election; and sound policy therefore requires that the public should be no more required to investigate the one than the other before according respect to his official position. For this reason ineligibility does not prevent one becoming a de facto officer if he has the requisite color of right to the office.14 These principles have been applied where a person elected to office has not resided within a given district the period of time required by law in order to qualify him for such office.16 A person may also be a de facto officer when the only defect in his title is due to his failure to perform some step required to perfect his legal right to the office, such as taking an oath,16 giving of a bond, or the like.17 But persons elected to office who have failed to qualify, or to assume in any way the functions of the office, are in no sense either officers de jure or de facto.18 And a .person who has received a valid appointment from a sheriff as his deputy and has entered upon the discharge of the duties of such deputy, but has failed to conform to the requirements of the statute by taking the oath of office, or filing his commission for record, ia likewise an officer de facto.19

8. See supra, par. 313. v. Gilbert, 64 N. H. 13, 5 Atl. 80, 10
9. Jewell v. Gilbert, 64 N. H. 13, 5 A. S. R. 357; Morford v. Territory, Atl. 80, 10 A. S. R. 357; Erwin v. Jer- 10 Okla. 741, 63 Pac. 958, 54 L.R.A. sey City, 60 N. J. L. 141, 37 Atl. 732, 516. 64″ A. S. R. 584; Dolan v. New York, 14. Note: 140 A. S. R. 175. 68 N. Y. 274, 23 Am. Rep. 168; In re 15. People v. Hecht, 105 Cal. 621, Radl, 86 W’is. 645, 57 N. W. 1105, 39 38 Pac. 941, 45 A. S. R. 96. 27 L.R.A. A. S. R. 918. 203. Note: 140 A. S. R. 173. 16. Plymouth v. Painter, 17 Conn.
10. Burke v. Elliott, 26 N. C. 355, 585, 44 Am. Dec. 574; Alabama, etc., 42 Am. Dec,. 142. R. Co. v. Bolding, 09 Miss. 255, 13
11. Malleit v. Uncle Sam Gold, etc., So. 844, 30 A. S. R. 541; Farmers’, Min. Co., 1 Nev. 188, 90 Am. Dec. 484. etc., Bank v. Chester, 6 Humph.
12. State v. Lewis, 107 N. C. 967, 12 (Tenn.) 458, 44 Am. Dec. 318; Weath- S. E. 457, 13 S. E. 247, 11 L.R.A. 105. ford v. State, 31 *lex. Crim. 530, 21 S.
13. St. Louis County Ct. v. Sparks, W. 251, 37 A. S. R. 828; Brown v. 10 Mo. 117. 45 Am. Dec. 355; Jewell State, 42 Tex. Crim. 417, 60 S. W.

There are, however, many cases which hold that quo warranto cannot be maintained on the relation of a citizen and taxpayer who has no interest in the public office involved different from other citizens and taxpayers.7 An illuminating discussion of this subject is found in a decision of the United States supreme court, construing a statute which provided for the institution of proceedings in quo warranto for usurpation, first by the attorney-general or the district attorney on his own motion, or at the relation of a third person, by leave of court, and second that upon refusal of the attorney-general and district attorney after request by a person interested, such person might apply to the court for leave to proceed. The conclusion reached by the court was that the interest which will justify such a proceeding by a private individual must be more than that of a taxpayer. It must be an interest in the office itself, and peculiar to the applicant.8 Under either construction of the rule it would appear that the claimant of a public office has such an interest therein as to entitle him to proceed in quo warranto.9 Under one interpretation, therefore, it might well be that a relator would have a right as a citizen and taxpayer to proceed to redress the public wrong caused by the usurpation and likewise a right as opposing candidate to question the right to a public office. The nature of his private interest would not, however, bar him from his public action.10 But a defeated candidate would have no interest beyond that of any other citizen or taxpayer although the successful candidate might not be qualified or entitled to hold the office.11 In concluding this discussion it should be pointed out that the rules laid down are not applicable where the statute in express terms or by necessary implication provides that the information shall be made only by the proper prosecuting officer. They would apply, however, where the relator had the right to make application directly to the court,12 and possibly also in the cases in which the court has undertaken to review the discretion of the state’s attorney in mandamus.18

8. Newman v. United States, 238 U. 94 Am. Dee. 75. S. 537, 35 S. Ct. 881, 59 U. S. (L. ed.) Notes: 125 A. S. R. 640; 13 Ann. 1446, reversing 42 App. Cas. (D. C.) Cas. 1064. 78, Ann. Cas. 1915D 1146. 12. United States v. Newman, 42
9. State v. Harrison, 113 Ind. 434, App. Cas. (D. C.) 78, Ann. Cas. 16 N. E. 384, 3 A. S. R. 663; State v. 1915D 1146. Barker, 116 la. 96, 89 N. W. 204, 93 13. See infra, par. 31. A. S. R. 222, 57 L.R.A. 244; Taylor