188 F. 747 | W.D. Mich. | 1910
This is a petition to vacate a naturalization certificate issued by the circuit court of Benzie county, September 21, 1908. It appears that Erickson filed his petition February 29, 1908, with William A. Anderson and F. Erickson as witnesses; that F. Erickson was not eligible as a witness, for lack of citizenship; that on April 25, 1908, the name of Erickson was erased from the witnesses’ affidavit, and the name of Peter Anderson was substituted, and the date of the affidavit changed from February 29, 1908, to April 25, 1908. These are the allegations of the petition, taken as confessed by default, and I interpret them as meaning that there appears of record upon the petition an affidavit purporting to be signed and sworn to on April 25, 1908, by William Anderson and Peter Ander
It may well be conceded, as held in United States v. Martorana, 171 Fed. 397, 96 C. C. A. 353, that a petition, verified by only one competent witness, is invalid, and it may even be called void in the sense in which that word is often used, although it would seem rather to be a sort of ineffective paper, ready to become effective at any time upon attaching the other affidavit. However this may be', the worst that can be said of such a petition is that it is not lawfully on file with the clerk, but is an unofficial paper remaining in his hands either with an imperfect affidavit, or with no affidavit, according to the view which may be taken. When, 30 days later or 60 days later, two competent witnesses come into the clerk’s office and sign and swear to this paper, it then becomes a valid and unimpeachable petition, and an entirely sufficient basis for the posting of the witnesses’ names and the subsequent judicial examination and pronouncement.
The only obstacle, as I think, to treating the petition, when finally properly verified, as sufficient, upon the theory that it is a petition then first efficiently initiated, is that by clause 2 of section 4. (Act June 29, 1906, c. 3592, 34 Stat. 597 [U. S. Comp. St. Supp. 1909, p.
I hesitate extremely to reach a conclusion which may seem to be in conflict with that of the Court of Appeals of the Second Circuit, but the matter, unless as to the single question of the duplicate affidavit, seems to me very clear; and since the theory that the petition, when properly verified, may be treated as a new petition, was not mentioned by the court in that case, it may be assumed that the facts of that case did not justify such a theory.
I feel compelled to hold that Erickson’s naturalization should not be cancelled on the ground of fraud nor on the ground “that such certificate of citizenship was illegally procured”; and, as no other grounds are provided for in section 15 of the act in question, the petition must be dismissed.