227 F. 189 | N.D. Cal. | 1915
The United States attorney, having filed herein a petition or complaint, under section 15 of the Naturalization Act of 1906 (Act June 29, 1906, c. 3592, 34 Stat. p. 596 [Comp. St. 1913, § 4374]), to cancel a certificate of naturalization issued to the defendant, John Leles, on the ground that it was illegally and fraudulently procured to be issued, the defendant has moved to dismiss on the ground that the complaint does not state facts sufficient to constitute a cause of action. The motion proceeds upon the theory that the proceeding is equitable in character, and that such motion, rather than a demurrer, is the proper method to test the sufficiency of the pleading. As this theory is not challenged by the plaintiff, its correctness may, without deciding, be assumed, since the motion raises the same question as would arise under a general demurrer.
In the first place, I do not regard the affidavit as jurisdictional in any such extreme sense as that contended for, and am not prepared to say that it furnishes the only competent basis for bringing such an action. But, treating it as a. feature of the pleading to which it is attached, I think it not open to the objections urged. Section 15 of the act, which alone refers to the affidavit, or indicates its purpose or function, provides;
“That it shall be the duty of'the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of. fraud or on the ground that such certificate of citizenship was illegally procured.”
The sole purpose apparently of the affidavit is to furnish an authentic source or means through which the United States attorney of the district may receive information upon which he may rely, of a violation of the statute. If the disclosures of the affidavit are such as to show “good cause” — that is, facts which, if sustained by proof, would afford ground for revoking the grant of citizenship involved, either for fraud or illegality — it is made his duty to proceed and institute proceedings to have the validity of the grant judicially investigated and determined. When it has accomplished this purpose of putting the wheels of justice in motion, the affidavit would seem to have fulfilled its office, and so far as anything appearing in the act to the contrary, becomes functionless. It is obviously not intended to serve as a pleading, since, in requiring a “suit” to be brought, the statute contemplates the filing of a formal complaint. Not being a pleading, it need not state its contents with the exactitude of one, but, like any affidavit, the form of which is not prescribed, is sufficient if the substantive matter
“The affiant further states that he is informed anrl believes that the said John Leles was not qualified to become a naturalized citizen of the United States, in that he was not a person of good moral character for the five years immediately preceding the date of his application for naturalization in the above referred to court.
“The affiant further states that he is informed and believes that the said John Leles procured naturalization in an illegal manner and in violation of section 9 of the act of June 29, J906 (94 Stat. part 1, p. 590), in this respect, to wit, that the court ordered, adjudged, and decreed the said John Leles a citizen of the United States upon the testimony of witnesses who were not examined under oath in opqn court, before the court;, and in the presence of the court, nor' was their testimony taken by deposition in the maimer i>resoribed in section 10 of the act of June 29, 1808 (34 Stat. part 1, p. 598).”
“The ninth section of the act of Congress above referred to, under which the petition for naturalization was filed, is specific and mandatory in requiring that the hearing should be in open court, and that the applicant and witnesses should be examined under oath ‘before the court and in the presence of the court’; and, except as provided in the tenth section, tlie court was not authorized to receive or consider evidence taken by depositions out of the presence of the court. Without the depositions, there was a lack of evidence to establish the facts necessary to entitle the defendant to become a naturalized citizen of the United States. The manifest intention of Congress, in the enactment of the naturalization law of 1906, was to proscribe rigid rules to be observed by the courts in naturalization proceedings and to correct the abuse of laxity in such proceedings. Therefore a court may not, in the exercise of assumed discretionary power, admit an alien to citizenship who has failed to establish his right by the kind of evidence which the statute demands.”
This would seem to be a correct construction of the act, and the other cases cited will be found to be in harmony with that view. The suggestion in United States v..Furia (D. C.) 184 Fed. 643, imputing a somewhat different meaning and effect to the phrase “illegally procured,” was made in a case where that feature of the act was not involved, and wliat is there said on the subject of its meaning must therefore be regarded as obiter.
“Where a showing by affidavit is required as to tacts which are necessarily matters of information and belief, an affidavit on information and belief ought to suffice. The statute should receive a construction in accordance with common sense. 'It was not intended to require perjury, and, as it requires affidavits as to matters involving legal opinions and conclusions of law and fact, it must contemplate that such affidavit will, be made upon the only basis on which such opinions and conclusions can be reached.”
This language is peculiarly applicable to the character of facts required to be inquired into under this statute for the information of the district attorney. They are, in their very nature, of a character of which personal knowledge may not readily be had, and will frequently depend for their value upon their legal effect. See,' also; Smith v. Collis, 42 Mont. 350, 112 Pac. 1070, Ann. Cas. 1912A, 1158; 2 Corpus Juris, § 87, p. 355, and cases cited.
The motion to dismiss is denied.
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