State ex rel. Weisz v. District Court, 202 P. 387

State ex rel. Weisz v. District Court

202 P. 387 | Mont. | 1921

ME. CHIEF COMMISSIONEE POOEMAN

prepared the opinion for the court.

Original application for certiorari. At the hearing on relator’s petition for admission as a citizen of the United States, the district court, after finding “that petitioner will not bear arms in defense of the United States,” made and entered the following judgment: “Said petition is hereby denied with prejudice, and [petitioner is] forever debarred from citizenship and declaration held invalid.”

The claim made by the relator is that the district court exceeded its jurisdiction in including in the judgment the phrase “forever debarred from citizenship.” A writ of review was issued by this court commanding the district court to certify and send to this court a transcript of the record and *432proceedings had at the hearing on relator's petition to become a citizen. The respondents appeared and moved to quash the writ so issued upon the grounds that this court has no jurisdiction of the subject matter; that a district court sitting as a naturalization court acts through courtesy and assumes the same status as a federal court in naturalization matters; that the admission of an alien to citizenship is a political, not a judicial act; that no right of relator has been violated; that the petition does not state facts sufficient to entitle the relator to any relief.

The objections made by respondents in their motion to quash [1] all have reference to the jurisdiction of this court. Congress alone has power to establish rules for naturalization (Art. I, sec. 8, U. S. Const.), but the Congress has from the very beginning conferred authority upon state courts to hear and finally determine applications for citizenship. The present law is contained in the Act of June 29, 1906 (34 Stats, at Large, 596). As early as 1792 the United States supreme court said: “State courts possess concurrent authority with federal courts to naturalize aliens, but such authority of the state court cannot be exercised so as to contravene the Acts of Congress.” (Collet v. Collet, 2 Dali. (U. S.) 294, 1 L. Ed. 387; see 2 Cyc. 111; Holmgren v. United States, 217 U. S. 509, 516, 19 Ann. Cas. 778, 54 L. Ed. 861, 30 Sup. Ct. Rep. 588 [see, also, Rose’s U. S. Notes]; 6 Fed. Ann. Stats. 938.)

“The power to naturalize an alien is a judicial power; consequently proceedings for naturalization are judicial proceedings to be exercised by the courts.” (2 Cyc. 113.) The power is tendered by Congress. The consent of the state to accept and act on that power is conferred on the state courts by the state Constitution. (Sec. 11, Art. VIII, Mont. Const.) The authority to naturalize is thus by the Act of Congress brought within the jurisdiction of the state court, and the judgment rendered is that of a state court acting within the limits of the authority conferred by Congress and accepted by the state. And when this power is exercised by a state court it is a *433judicial proceeding. It is not the report of a federal agent nor the 'conclusion of a magistrate. This judgment is recognized by the federal authority as res adjudicate and final. (United States v. Gleason (C. C.), 78 Fed. 396, 6 Fed. Ann. Stats. 938 et seq.)

In a naturalization proceeding the question presented to the court is contained in the petition then before the court, not in some other petition thereafter to be filed or tendered for filing. It is a statutory proceeding, and the court cannot go beyond the statute. “Ah alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications. Their duty is rigidly to enforce the legislative will in respect to a matter so vital to the public welfare.” (United States v. Ginsberg, 243 U. S. 472, 61 L. Ed. 853, 37 Sup. Ct. Rep. 422.)

A court is certainly not transcending its discretionary power [2] when it refuses to admit to citizenship an alien who affirms that he will not support the government, and this would apply to any petition filed if the same conditions existed.

The phrase “with prejudice” appearing in the judgment can' [3] only mean that the judgment is final as to the petition then before the court. But the phrase “forever debarred from citizenship” is not authorized by the Act of Congress. The question as to whether the relator has the right under the federal law to file another petition is not involved in this hearing. Federal courts have considered that question. (6 Fed. Ann. Stats. 938 et seq.; In re Centi (D. C.), 217 Fed. 833; In re Guliana (D. C.), 156 Fed. 420.) If this statute does not5 deny to the petitioner the right to file another petition in the future, the court cannot deprive him, of that right or prejudge' the petition when filed or tendered for filing. And if no such right is now given, it is within the power of Congress to enact a statute which does give it. This judgment on its face is a perpetual bar to the exercise of any such right, and in effect a denial of the power of Congress, and to that extent the phrase *434complained of in the judgment is not authorized by the Act of Congress. This is sufficient to call into requisition the action of this court if it has jurisdiction to act at all with reference to judgments in this class of cases.

The relator does not take issue with the judgment of the district court, in so far as it denies his application to become a citizen, but admits the legal discretionary power of the court to approve or deny his application. The judgment denying the application stands. The objection is directed solely to that part of the judgment which forecloses the future to him. [4] Whatever may be the rule in other jurisdictions, there is not any appeal from judgments in naturalization proceedings in this state. And that is the rule announced in other states having similar statutes. (State ex rel. Gorelich v. Superior Court, Kings County, Wash., 75 Wash. 239, Ann. Cas. 1915C, 425, 134 Pac. 916. See, also, United States v. Dolla, 177 Fed. 101, 21 Ann. Cas. 665, 100 C. C. A. 521.) However, the supreme court of Illinois did entertain an appeal by the government, and reversed a judgment admitting an alien to citizenship. (United States v. Hrasky, 240 Ill. 560, 130 Am. St. Rep. 288, 16 Ann. Cas. 279, 88 N. E. 1031.)

We then have a final judgment rendered by a state court, sitting under authority of the state Constitution, acting in a case brought before it and within its jurisdiction by Act of Congress, containing a command not necessary to the determination of the issue then before the court, and not authorized by any law, state or federal, and clearly in excess of its jurisdiction. It is certainly not within the meaning of the Act of Congress that a court may prescribe additional qualifications to become a citizen of the United States or to foreclose any subsequent legislation by Congress, either prescribing additional qualifications or omitting those now existing.

It has been held by this court that certiorari will not Tie, [5] unless it appears that jurisdiction has been exceeded, that there is no right of appeal, and that there is no other plain, speedy, and adequate remedy. (State ex rel, Weinstein *435Co. v. District Court, 28 Mont. 445, 72 Pac. 867.) All these requisites are present in the instant case. The provisions of the state Constitution and of the statute which clearly confer power upon this court to grant relief in cases of this kind are so clearly and exhaustively analyzed and discussed in Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829, 70 Pac. 517, that further comment is unnecessary.

We recommend that the judgment complained of be modified by striking out the clause complained of, namely, “forever debarred from citizenship.”

Per Curiam : For the reasons given in the foregoing opinion, it is ordered that the judgment complained of be modified by striking out the clause complained of, namely, “forever debarred from citizenship.”

Modified.