273 F. 207 | W.D. Mo. | 1921
Lead Opinion
The petitioner is a native of Korea, owing allegiance to and a subject of the Mikado of Japan, a resident of Parkville, Mo., as a student of Park College. He was drafted into the United States army, serving therein from April 15, 1918, to December 28, 1918, receiving an honorable discharge from such service. His service was at military training camps within the United States. His educational qualifications, character, and record of military service are good. His naturalization is not opposed on personal grounds, but upon the contention that all members of his race are barred from naturalization under the provisions of section 2169 of the Revised Statutes of the United States (Comp. St. §■ 4358). He seeks to be naturalized under the provisions of subdivision 7 of section 4 of the Act of June 29,1906, as amended by the Act of May 9, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352 [7]), and by the subsequent Act of July 19, 1919 (41 Stat. 222). Section 2169, imposing limitations upon eligibility for naturalization, reads as follows:
“TTu> provisions of this title [of naturalization] shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent.”
The applicant is admittedly neither of African nativity nor of African descent. The question at issue is whether he is a white person within the meaning of this section, and, if not, whether he is still entitled to citizenship because of the alleged exceptions made by the acts of Congress to which reference has been made.
Whether or not historically the term “Caucasian” is accurate as a designation of the white race, it is a term which, appeals to common understanding and to that of the lawmakers with practical definiteness, and the term “white person” may now be said to have a well understood meaning. In the case at bar we are not troubled by close refinements of definition, either ás to race, color, or geographical location. The petitioner is a Korean, admittedly of the Mongol family. Whatever their precise shade of color may be defined to be, they are confessedly not white persons, either in fact or in accordance with common understanding, and they are about as far removed from Europe and the Mediterranean Sea as could well be imagined. If, then, the applicant is eligible to be admitted to citizenship in this country, it must be because of the provisions of the amendatory acts to which reference has been made.
So much of subdivision 7 of section 4 of the Act of June 29, 1906, as amended by the Act of May 9, 1918, as is material to this discussion, reads as follows:
“Any native-born Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who has enlisted or may hereafter enlist in the United States Navy or Marine Corps or the Naval Auxiliary Service, and who, after service of not less than three years, may be honorably discharged therefrom, or who may Receive an ordinary discharge with recommendation for reenlistment; or any alien, or any Porto Rican not a citizen of the United States, of the age of twenty-one’ years and upward, who has enlisted- or entered or may hereafter enlist in or enter the armies of the United States, either the regular or the volunteer forces, or the national army * * * may, on presentation of the required declaration of intention petition for naturalization without proof of the required five years’ residence within the United States; * * * Any alien serving in the military or naval service of the United States during the time this country is engaged in the present war may file his petition for naturalization without making the preliminary declaration of intention and without proof of the required five years’ residence within the United States; * * * and any alien, or any person owing permanent allegiance to the United States embraced within this subdivision, may file his petition for naturalization in the most convenient court without proof of residence within its jurisdiction, * * * provided he appears with his two witnesses before the appropriate representative of the Bureau of Naturalization and passes the preliminary examination hereby required before filing his petition for naturalization in the office of the clerk of the court.”
Section 2 of the Act of May 9, 1918 (section 4352aa) provides that:
“All acts or parts of acts inconsistent with or repugnant to the provisions of this act are hereby repealed; but nothing in this act shall repeal or in any way enlarge section twenty-one hundred and sixty-nine of the Revised Statutes,'except as specified in the seventh subdivision of this act and under the limitation therein defined. * * * That as to all aliens who, prior to January first, nineteen hundred, served in the armies of the United States and were honorably discharged therefrom, section twenty-one hundred and sixty-six of the Revised Statutes of the United States shall be and remain in full force and effect, anything in this act to the contrary notwithstanding.”
However, in the act of May 9, 1918, it was provided that any native-born Filipino of the age of 21 years, who has declared his intention to become a citizen of the United States, and any Porto Rican not a citizen of the United States of the age of 21 years and upward, who had enlisted, or might thereafter enlist, generally speaking, in the military ‘or naval service of the United States, might become naturalized in the manner therein prescribed. It makes no other reference to the racial or geographical status of any person contemplated by the amendment. The act also provides that “any alien” who might thus enlist or enter the military or naval service of the United States may be natural-* ized in like manner. Section 2 of the amending act, as we have seen, expressly provides that—
“Nothing in this act shall repeal or in any way enlarge section twenty-one hundred and sixty-nine oE the Revised Statutes except as specified in the seventh subdivision of this act and under the limitation therein defined.”
The government contends that this limits the privilege to those races otherwise eligible to naturalization, while the petitioner claims that the privilege embraces all aliens of whatever race provided they have rendered the military or naval service specified.
It should be borne in mind that the policy of our law, from 1802 down to the present time, has had in view the prevention of all aliens, not free white persons, from becoming citizens. The first exception was introduced by the act of July 14, 1.870 (Comp. St. § 4358), at.which time persons of African nativity and African descent were included, in view, as has been stated, of the peculiar situation of inhabitants in this country of that race. The revisers of the laws of the United States, at the first session of the Forty-Third Congress from 1873 to 1874, inadvertently- omitted the words “free white persons” from section 2169; but this was immediately corrected, upon discovery, by Act of February 18, 1875, entitled “An act to correct errors and to supply omissions in the Revised Statutes of the United States,” and the language of that section was restored to its present reading. The repealing section of the act of 1906 did not include section 2169, and the present act of 1918 expressly preserves it in force, “except as specified in the seventh subdivision of this act and under the limitation therein defined.” The history of legislation upon this subject convincingly demonstrates the purpose of Congress to limit applicants for naturalization-to free white persons and those of African nativity and descent. ■
We have, then, to consider the meaning of the language last quoted. What are the specifications referred to in the seventh subdivision, and what is the limitation therein- defined ? As has been said, the only reference to race contained in that section was as to Filipinos and Porto Ricans. For- this reason, it may well have been deemed necessary, or at least expedient, to reaffirm the binding force and effect of section 2169. It has already been shown that Filipinos, in certain cases, have been adjudged inadmissible to citizenship because of racial disqualification. Some citizens of Porto Rico may be conceived to present similar disabilities. Congress, in passing this law, must be presumed to have acted with knowledge of all previous legislation and of its interpretation by the courts. The exceptions referred to must have been the races especially mentioned in the seventh subdivision, and the limitation was the military or naval service performed. In other words; under the general law, neither a Filipino nor a Porto Rican could necessarily have been admitted to citizenship. Under this subdivision, he may. be, irrespective of race, if he has performed the service specified.
If, as contended by the petitioner, the exception reserved was in
“Naturalization creates a political status which is entirely the result of legislation by Congress, and, in the case of a person not born a citizen, naturalization can be obtained only in tlio way in which Congress has provided that it shall be granted, and upon such showing of facts as Congress lias determined must be set forth.” In re Alverto (D. C.) 198 Fed. 688; In re Knight (D. C.) 171 Fed. 299.
The objection to this applicant .is not founded upon any personal consideration. On the contrary, recognition of his educational qualifications and character is supplemented by appreciation of his military service. It may very well be conceded that that service should be appropriately rewarded, but the' privilege of citizenship rests with Congress, and with Congress alone, and the courts have no power to alter or extend the provisions of law to that end.
The petition is accordingly denied.
Rehearing
On Rehearing.
“Any person of foreign birth who served in the military or naval forces of the United States during the present war, after final examination and acceptance by the said military or naval authorities, and shall have been honorably discharged after such acceptance and service, shail have the benefits of the seventh subdivision of section 4 of the Act of June 29, 1906, Thirty-fourth Statutes at Large, part 1, page 596, as amended, and shall not be required to pay any fee therefor; and this provision shall continue for the period of one year after all of the American troops are returned to the United States.”
The court has also received a copy of the report of the Senate committee on immigration upon the Act of May 9, 1918, aforesaid. It contains this significant language:
“It [section 2 of the act] also declares that nothing in the act shall enlarge or repeal in any way section 2169 of the Revised Statutes, except as specified in the seventh subdivision and under-the limitation therein defined. This means that Filipinos may be naturalized who are enlisted in the army or navy of the United States and are honorably discharged therefrom.”
This confirms the purpose and intent of Congress as deduced and declared in the foregoing memorandum. The words “any person of foreign birth” occurring in the Act of July 19, supra, do not enlarge the word “alien” as contemplated by these acts, in view of their specific reservations. A reason for the later legislation, if one is necessary to be advanced, is found in the further limitation of the application of the provisions of section 7 to a period of one year after all the American troops are returned to the United States, which provision is not found in the earlier act.
For the foregoing reasons, I am constrained to adhere to the conclusion reached in my original opinion. -