#### NICOLAS QUINTANA v. R. H. TOMKINS.

Contested Election oe Justice oe the Peace, Aepeal in. — An appeal lies from a judgment of a probate judge, to the district court, in a case of a contested election for justice -of the peace.

Judgment Rendered in Vacation in such Case. — A judgment of a probate judge, deciding a contested election for justice of the peace, may be rendered in vacation.

Appeal erom Pbobate Court Tried de Novo. — In all cases of appeals from the probate to the district court, including contested election cases, the cause is to be tried de novo upon a full hearing of the evidence.

Right oe Election as to Citizenship under Treaty. — The right of election secured to Mexican citizens of this territory by the treaty with Mexico, to retain their citizenship or to become American citizens, was not required to be exercised in any particular mode, but could be exercised and proved in any manner appropriate to the nature of the case.

Declaration oe Intention to Retain Citizenship. — A declaration of intention by a Mexican citizen to retain such citizenship, by signing his name in a list authorized to be kept by the clerks of the prefects’ courts, by a proclamation of the military governor of the territory, is a sufficient and binding exercise of the right of election provided by the treaty, and is not affected by a subsequently declared intention to withdraw such signature, which is not shown to have been acted on.

Appeal from Santa Ke county. The' case is stated in the opinion.

M. Ashurst, for the appellee.

*30By Court,

BaKEE, C. J.:

At an election for justices of the peace,' held in and for Santa Ee county, on the "first Monday of September, 1852, the appellant received a plurality of votes and was returned by the probate judge as having been duly elected as justice of the peace. The appellee, having also received a number of votes for the same office, contested the election of the appellant, and th.e probate judge, upon the hearing of the case, gave judgment in favor of the appellant; thereupon the appellee appealed to the district court, and at the September term a motion was made by the appellant, Quin-tana, to dismiss the appeal, which motion was overruled, and, upon a hearing of the cause, that court reversed the judgment of the probate judge, and adjudged that the appellant was not a'citizen of the United States, and was therefore disqualified to hold the office of justice of the peace. To reverse this judgment of the district court the appellant has brought the case to this court, by appeal.

Three grounds are urged for a reversal: 1. Overruling the motion to dismiss the appeal; 2. Overruling the objections of appellant to the admission of the testimony on the part of the appellee upon .the hearing of the cause; and, 8. The rendering of the judgment for the ap-pellee.

The following are the various sections of the law prescribing the appellate jurisdiction of the courts, regulating appeals, and prescribing the mode of determining cases of contested elections: Every person aggrieved by any judgment or decision of any circuit court in any civil case may make his appeal to the superior court: B,. C., act 49, sec. 9. The superior court shall have appellate jurisdiction in all cases, both civil and criminal, which may be determined in the circuit Court: Id., sec. 8.

The circuit courts in the several counties shall have * * * appellate jurisdiction from the judgments and orders of the prefects and alcaldes in all cases not prohibited by law, and shall possess a superintending control over them: Id., sec. 18.

*31Appeals from tbe judgments of tbe prefects shall be allowed to tbe circuit court in tbe same manner and subject to tbe same restrictions as in case of appeals from tbe circuit court to tbe superior court: Id., sec. 22.

Tbe fiftieth section of tbe election law acts, 203, provides that tbe election of justices of tbe peace may be contested before tbe probate judge, and that tbe contest shall be beard and determined in a summary manner. Tbe fifty-first section provides that if a contested election be pending, tbe person bolding tbe certificate of election shall take possession and discharge tbe duties of tbe office until tbe. contest is decided.

Tbe opinion of tbe probate judge in the transcript of tbe record from bis court is substantially a judgment, and determines tbe matter in contest, tbe citizenship of tbe appellant, and bis due election as justice of tbe peace.

There is nothing in tbe objection that it was not rendered at a regular term of tbe probate court, for tbe statute requires tbe matter to be beard and determined in a summary manner, and tbe decision could as regularly be made in vacation as in term time. By tbe eighteenth section, above quoted, tbe district court has “appellate jurisdiction from the judgments and orders of the prefects and alcaldes in all cases not prohibited by law.” This is not a case prohibited by law, and this is such a judgment as an appeal may well be taken from under tbe twenty-second section. Tbe affidavit and appeal bond seem to be in accordance with the requirements of tbe law regulating appeals from tbe district to tbe supreme court. Tbe appeal,* therefore, ought not to have been dismissed. Appeals in cases of this character from tbe probate courts to tbe district courts are, like all other appeals so taken, to be tried, not upon an inspection of tbe record, but de novo upon their merits, upon a full bearing of tbe evidence and tbe parties.

Tbe nest objection is to tbe admission of tbe evidence in tbe cause. Tbe question was whether tbe appellant at that time was an American citizen. By tbe article of tbe treaty between tbe United States and tbe Mexican republic, it is provided that Mexican citizens who shall prefer to re*32main in said territories mav either retain tbe titles and rights of Mexican citizens or acquire those of citizens of the United States, but they shall be under obligation to make their election within one year from the date of the exchange of ratifications of this treaty, and those who shall remain in said territories after the expiration of that year, without having declared their intention to retain the character of Mexican citizens, shall be considered to have elected to become citizens of the United States.

The appellee sought to prove at the hearing that the appellant had made his election to retain the character of a Mexican citizen. No mode of making this election was prescribed in the treaty, or by the American government, or under its authority. But this omission did not deprive the Mexican citizen of either the right or the power t'o'make it.' Yarious modes of making the election might have been adopted, any one of which would have been effectual, provided that it sufficiently evidenced the determination of the mind to retain or acquire respectively either character of citizenship. As no mode had been prescribed, and no particular species of evidence required, it was an act that might have been performed in any sufficient manner, and proved, like any other disputed fact, by the best evidence of which the nature of the case admitted.

The appellee produced in evidence a book purporting to contain a list of persons choosing to retain the character of Mexican citizens, according to the provisions of the treaty between the United States and Mexico. This book contained a caption or statement at the commencement of the list, stating in effect that it was a register of the names of persons mentioned as desiring to retain the character of Mexican citizens. Also a proclamation of J. M. Washington, at that time civil and military governor of the territory, dated the ninth of April, 1849, authorizing the enrollment of the names by the clerks of the prefects’ .courts of the several counties of the territory. The correctness of this list was certified at the foot thereof by J. Giddings (by deputy) as such clerk. Said Giddings also proved that he was *33present and saw appellant sign bis name to said list in tbe year 1849, and before tbe expiration of tbe time fixed by tbe treaty for making snob declaration. It was further proved that tbe appellant bad afterwards stated in conversation that be was a Mexican citizen. There was also proof that tbe appellant, on tbe day be signed said list, stated publicly bis determination to withdraw bis signature from said list, and that be went away with the clerk of tbe prefect’s court, with tbe intention of doing so. There was also proof that tbe appellant bad held tbe office of constable under tbe present government of tbe territory. We think this evidence sufficient to justify tbe district court in tbe judgment which it gave.

Here tbe act of signing bis name by tbe appellant, under tbe caption declaring it tbe purpose of the signers to retain tbe character of Mexican citizens, and in pursuance of a proclamation of a public officer in authority, calling attention to tbe matter of making such election, is evidence unequivocal of bis determination of bis election to retain tbe character of a Mexican citizen.

It is true be seems a short time afterwards to have repented tbe act, and declared bis determination to withdraw bis signature from tbe list, and that be went away with tbe clerk who bad charge of tbe book with that object in view; but there is no evidence of bis having done so; for aught that appears to tbe contrary, be may have abandoned that determination, and in tbe absence of evidence, bis name still remaining on tbe list, it is to be presumed that be did.

We do not perceive any error in tbe record of tbe proceedings, and are of opinion that the judgment of tbe district court ought to be affirmed.