In re Pfleiger

254 F. 511 | S.D.N.Y. | 1918

LEARNED HAND, District Judge.

[1] This case presents the case of an application for naturalization by an Alsatian born before the cession of Alsace to Germany, but at that time a child. His parents did not remove to France in accordance with the provisions of the treaty between France and Germany, and by the cession to Germany they became subjects of the German emperor. This change in their allegiance was effected regardless of their will, and was the result of the enforced consent of their sovereign at that time. Regardless of the personal feelings of the Alsatians, their status became so established, and they must be treated as German subjects until there has been some change in status which can be recognized by our courts.

The petitioner is entitled to relief under the third proviso of paragraph 11 as added to section 4 of Act June 29, 1906, c. 3592, 34 Stat. 596, by Act May 9, 1918, c. 69, § 1 (Comp. St. 1918, § 4352), upon consent granted by the President, but it seems to me unquestionable that this is his only remedy. I shall therefore decline to act upon the present petition until peace has been declared.

Hearing adjourned sine die.

On Further Hearing.

[2] Upon rehearing it appears that this applicant has n'ow procured the consent of the Department of Justice, acting with the authority of the President, to his admission. The Department of Labor suggests in opposition that no notice has been given to it as required under the first proviso to the eleventh paragraph of section 4 of the Naturalization Act, as amended. It is, however, an error to suppose that such a notice is necessary in cases of Germans where the declaration was made after April 6, 1915. In such cases the President alone may grant consent to the naturalization of an alien enemy under the third proviso of that section, and the inquiry precedent to that consent must be conducted by the Department of Justice. As the Department' of Labor has no duties to perform respecting such cases, it is obviously unnecessary that notice should be given to it, and, indeed, to give such notice might presuppose the possibility of a decision' by the Department of Labor different from the Department of Justice, an untoward result. The words in the third proviso, “foregoing exemption,” mean the condition or exception set forth in the body of the eleventh paragraph, beginning with the words “unless he made,” etc. The first proviso is attached both grammatically and in its meaning to this condition, but to nothing more. The-third proviso reaches all cases within the general prohibition of the eleventh paragraph, except those included within the condition or exemption, but it does not reach those which are within the exclusive purview of the Department of Labor.

There is, therefore, no need to give notice to the Department of Labor of applications made by alien enemies upon declarations made after April 6, 1915, if they be Germans, or December 7, 1915, if they he Austrians. The petitioner will therefore be admitted.