*1 invalid, amend- osition the Detroit good; whereas, respondents’ ments are on side, challenged Detroit amendments were arising proofs— on considerations regardless “proposition 120.” the fate of rehearing The motion is denied.
TURLEJ UNITED STATES. Appeals, Eighth
Circuit Circuit. Court February 21, 1929.
No. Ellery, R. of Cheyenne, Wyo. C. (D. A.
Preston, Springs, Wyo., Rock on brief), for appellant. Paul Wilcox, T. Atty., Asst. U. S. Cheyenne, Wyo. (Albert Walton, D. U. S. Atty., Cheyenne, Wyo., brief), the United States. BOOTH, Before Cir COTTERAL, Judges, and REEVES, Judge. cuit District REEVES, Judge. de- District From a naturalization, canceling his cree appealed. defendant has action under section title Annotated, relating States Code subject of aliens and and which prescribes procedure cancellation provided of naturalization certificates. proceedings in- may this section that setting purpose “for the stituted aside canceling certificate of or *2 judicated cause illegally could not retried. The and was of certificate upon stipulation to a submitted the court was procured.” oral tes- additional cancel- the with some a to in the instant case seeks The bill timony. Perti- fraud. lation on of the sole Wyo a appellant appeared before said “That The allegation's as follows: nent his by ming 26, 1921, on on March obtained state court naturalization was of certificate Upon hear petition for naturalization. the fol- fraudulently,” then and defendant said for the dis ing the Naturalization Examiner instance, For of circumstances. a detail lows fraudulently challenged qualification of the trict charged the the it was that pe petitioner, “upon ground that the said his the fraudulently induced wit- and took oath ”* "2 person then of titioner was a then “that said defendant nesses to take oath July good moral'character, had not since during period five and the of was, and and there years immediately preceding 19,1914, the been, a five years preceding application had said a filing petition, his all times as during of at good character, behaved person of and moral good character, man moral attached to as man of period had behaved a of five said de- of the Constitution character, and that said the good of moral good disposed the States, and well to the United and was attached fendant then there happiness required same, of of the United principles of the Constitution order law. States, and well full appellant at time made a de- The that happiness same, and that said complete of of his statement the fact support the Constitution fendant would plea Wyoming, of of al- violation the laws faith and United bear true States and impositian $200. of fine of guüty, of a legiance same.” April plea guilty of on challenged His was entered of in The truth the above was 1920. The infraction of law ad- charged: “The the state bill, and it further was February mittedly occurred on It 1920. then and there said defendant did intend that, appellant was admitted was convicted in provisions of violate the of Wyoming' . the United Court of States and of the United States District the United laws 8, 1922, possessed having on December passed thereunder, de said that intoxicating liquor sold in violation of fendant, to the time and his he said August the National on oaths, wit, took Prohibition Act aforesaid, said witnesses day 1922. was also Septem- on A. It April, the 25th D. admitted that on of 12, 1923, plea ber of entered a district court of the district Third guilty Wyoming a sitting charge in a Wyoming, of within and state aggravated plead upon of county Lincoln, state, assault certain revenue of in said government. charge of the national was pending ed to a officers there then admitted illegal 14,1923, ap- also on November pos him of and unlawful that pellant plea gmlty Wyoming a of in intoxicating entered liquor, session of which said having state court for an unlawful sale then and there also constituted a made intoxicating liquor August 25, of of violation Constitution of Objections and the of the United States appellant’s laws were made coun- passed thereunder.” sel the introduction of the evidence of the several of alleged subsequent It was further violations law of at immateriality. argued dates, It was wit, 8,1922, December February 6,1920, immaterial, charged because was and convicted of was filing petition committed after (27 USCA), Act National Prohibition Ms September charged naturalization, offenses other he'was after Wyoming having in a were committed certificate of nat- state court granted. judge uralization had been The trial States, assaulted revenue officers the United appellant’s upon certificate and that canceled ground 12, 1923, on November he was con- ip. Wyoming that the assertion victed was state court possession illegal the Constitution unlawful sale of in- supported by toxicating liquor. his conduct. appellant by appellant, The contention made answer denied that upon he had which the action is obtained his admission as a the affidavit citizen predicated insufficient, is He without merit. fraud. admitted that he had violated provides duty “It be the pending the law shall for citizen- statute attorneys ship, all facts States distinct but asserted that in relation showing respective districts, affidavit thereto had been communicated to the court therefor, proceedings,” to institute hearing, cause and that had been ad- same Unquestionably etc. ease 11 the affidavit before he citizen- months was admitted to cause,” ship. “good showed for the that it reason alleged embodied the bill and grant- faets It was that, further admitted after agreed ing set forth in statement faets. violated *3 apt Moreover, in the separate although reference thereto made law on occasions, is three allegations bill, year the of the was at- these and same violations occurred more than a petition tached to the as after the an exhibit. issuance of the certificate. These sev- trespasses upon eral criminal acts were either We must also hold that the bill was statutes, or, our national as substance, sufficient. It Constitution and charged, in is case, aggravated appellant upon gov- in one an the his and assault asserted attachment principles Moreover, ernment revenue Constitution, devotion officers. three of to the the of directly whereas, such criminal acts violated time the Con- so, the did he intended to he provisions of violate the stitution United States. of the Constitution. the of argued is the the for fraud. is basis It evidence should' this Appellant’s to considered, attachment not be because the. violations was a precedent condition to adpaission as his the citizenship occurred for after citizen, a if so attached, not and was filed. very is clear that the statute “well good hap order of behavior the must be a man “as piness same,” of the then his good statement during moral of character” five the operated was so attached preceding a hearing petition, the on his court, alleging the a bill so would state principles be to he must “attached the of a cause of action. the Constitution of the United States.” determining In Bonner, 789, whether the bill was In 279 F. the re United States supported by evidence, preliminary a the sur of Montana, District Court of the District vey applicable law petitioner to character of held of that the behavior the con Although proceed eases be made. of inquiry up should the tinued to be a matter clear to ings for citizenship, admission are of hearing petition. the the his time (Tutun States, 568, v. United 270 U. 46 S. S. States, In Glaser v. 289 255, United F. the yet “they Ct. L. 425, 738), 70 Ed. are not Appeals Circuit Court of of the Seventh Cir- purpose vindicating the usual ex of an “subsequent cuit held that acts declara- isting right, purpose getting but of the properly of tions admitted as were granted rights yet to an alien that do not ex tending to disclose his state of mind when he ist” (Maney States, v. 27, United 278 U. No. signed petition his naturalization.” 17, 49 15, S. S. Ct. 73 Ed.-, L. decided appear, It therefore, would that evidence Supreme United 22, States Court October of behavior of appellant, both before his 1928). that, gift It being follows granted thereafter, certificate was would every government, condition attached to competent bearing be question of grant complied “must strictly, with as his morals and his attachment the Consti- government gifts.” in other of instances Man- tution. Neither can the contention be sus- ey States, supra. v. United citizenship, tained that admission Among important precedent previous of the faets of infraction conditions adjudication during the admission of a law before the is citizen are “that such an years preceding hearing] as to time bar review. The decisions of United [five Supreme he has behaved man as a moral States Court char Johannessen v. acter, States, 227, attached to the 225 32 U. S. S. Ct. Con United States, stitution 56 Ed. 1066, and well dis L. and United Gins- posed berg, happiness 243 U. S. 37 S. Ct. Ed. 61 L. complete same.” Section answers. Title Code Annotated. former In the case court said: “Sound think, is' power agencies reason, deny It as we not within constrains us to to a government grant gift naturalization, procured to make or ex citizenship, if applicant parte ordinary way, any fails to ef- meet conclusive requirements. public. One refers to the mat- fect Such certificate, these ter part ‘judgment’ upon including of conduct or behavior on which it is applicant, grant- and the to his is essence an based, other mental attitude. its instrument open undisputed ing political privileges, and It was like other had been punished public grants the law if and subsequent to be revoked when it hearing declaration and to his have unlawfully on his shall be found to been or petition April fraudulently wit, procured.” 26,1920, act regulation It is an police “An violated. usual pertinently the court said: Moreover principle Congress new right to of to administer nor alien moral constitutional has no All prohibition. Constitution, false of federal if, privileges retain all men. Hence imposition has been this is new known like, or evidence an deliberately consciously which violation of it is practiced upon principles of the Consti in subversion of the citizenship could not and would certificate of proven it must he tution, As said to which issued.” was well not have been admitting him Bank, applicant attached, is before in Foster v. Essex Chief Parker Justice * * * enough to citizenship. Massachusetts, 245, 135], Dec. 273 Am. [8 right do thing as a vested to some of the 'there no such ” proof Constitution. There of attach wrong/ must be *4 following supra, them, including prohibi ment Ginsberg that of Case, In the Violating employed: “An who breeds language alien tion. this law disorder was unhappiness, na- in circumstances here in political rights as a member this seeks only upon disposed not the offender is ‘well rightfully obtain them dicates tion can happiness’ specified Congress. order and of nation and by and conditions terms people.” authority sanction (cid:127)Courts are rigidly modifications; duty changes or their is In the In Nagy, three In re re cases respect of a legislative will in Raio, Phillips, F.(2d) enforce re 3 reported In in * * * public welfare. 79, matter vital to respectively, so the District Court slightest right natural- No alien has the Southern District of at Hous- Texas statutory requirements ton, ization unless all subscribed to the above views. n compliedwith; every of citi- certificate by Measured state authorities, the upon con- zenship granted be as must treated court in granting made mistake .a may challenge it government dition that citizenship. Appellant possess not did provided § in section-15 USCA as 405]. [8 requisite qualifications, so court was cancellation issued in its unless demand However, advised. court was induced pro- requirements. If accordance such make such of the mistake the frankness no prescribed qualifications have cured when admitting offense, in Ms procured; a fact, illegally it in existence is oath, avowal, under that was then judge supply cannot manifest mistake The Constitution. to the nor non-essen- render their existence these, however, He Ms assertion.- discredit tial.” qualified was not but deceived applicants can be found Pew cases where believing he was. Such court into if citizenship admitted, been have upon operated a fraud deception as- liquor years violating laws within the five deception evidenced and fraud were and tMs have preceding hearing, and such cases prior, conduct. subsequent, as well as by his severely criticized the courts. been right canceling his in judge was trial The adoption of the was true even before the decree Ms naturalization, and Eighteenth part of our na- as Amendment affirmed. should be tional Constitution. It is ordered. so 361, Judge Trum, 199 Van Valk- In re P. Judge Western enburgh, then District Missouri, BOOTH, Judge I (dissenting). an Circuit District of denied is natural applicant been The suit one to cancel a because the had dissent. In prohibitory of fraud. Kansas ization certificate account convicted of hearing. must be before of such character the evidence law more than four suits unequivocal, convincing. applicant clear, the act The said that court Budd, 154, 12 well v. 144 S. S. the lawbreaker —not of one U. Ct. that of “was 384; Knight (D. happiness 36 Ed. to the L. A.) C.) F. (C. 291 F. affirmed C. 299 flowing attachment to the in case does The evidence at bar of the United States.” opinion, up required Bonner, supra, citizenship not, my de in measure In re was conceding acts of the applicant Even nied because the had violated the standard. pointed after the date of liquor committed law. It was there out competent evidence to only con naturalization were such an offense not case where was date, yet the prove mind on that applicant was state to debar the Ms sidered sufficient naturally probative of such dimin C.) value acts Hopp (D. In 179 F. and that that re length The of time increases. criticized, ishes case has never followed. been but question place in took appellant here said; “Furthermore, the acts of is not The it from IV2 natural years after he was cancellation, decree of under these 2% ized. circumstances, will, fear, lay open to I itself real presumption of mind its state basis committed on when was same the offenses naturalized was but by appellant committed is, subsequent question, when he committed the to his acts my naturalization. opinion, a basis Such a too weak cancel- to serve present. lation predicate does exist majority which If fraud. The opinion recognize, desirable, although seems to rather it should he created congressional reluctantly, presumption. rather legislation. than weakness of Accordingly attempt an made to buttress subsequent the evidence as acts appellant by evidence of the fact months before he naturalized he commit- O. B. CO. v. CRITTENDEN & NORTH prohibition ted an against offense laws INS, BRITISH & MERCANTILE CO state, which an was also . LONDON, OF ENGLAND. the National Act. Prohibition Appeals, Circuit Court of Fifth Circuit. Let it conceded that evidence March competent act also was and relevant *5 No. 5490. the state of mind issue on the date of his Yet naturalization. here again presumption me seems that the it that his of mind at the time continued,- prior act was the same of his naturalization, date too weak serve predicate aas basis which to fraud. Furthermore, foregoing por- does tray whole shows situation. record appellant’s that at the time of naturalization prior
he admitted to the state court this of- also disclosed state court
fense^ the facts surrounding circumstances extenuating prior offense. The state court, knowledge full of-the ad- citizenship.
mitted What the
facts and circumstances were which surround- prior They ed offense we know. do appear do not the record before us. they important But weight were and of would seem to be indicated fact of entry judgment the state presumption regularity validity judgment.
which attaches grave objection position majority of the court opin- their shown ion, lies, it me, seems to in this: That full weight prior is accorded to the offense as a unexplained bare, fact, notwithstanding that unexplained it did a bare, not stand as fact
in the giving state court. The of such un- weight affected and undiminished to the fact hardly to be fair seems the appellant, or to and leads validity. to a result doubtful though it is knowledge aware presumably important some and relevant case, yet reaches facts the conclusion defrauded, state court has been has been
fraud.