| S.D.N.Y. | Aug 18, 1908
(after stating the facts as above). The second cause of action set forth in the petition is dismissed for total lack of evidence.
The third and fourth causes of action are dismissed, because not sustained by a fair preponderance of credible testimony.
The first cause of action presents the question of residence, and, under the findings of fact above made, an order or judgment must be entered canceling Mansour’s' certificate of naturalization, unless: (1) This proceeding is one in which. defendant is entitled as of right to a ju'ry trial, which has been duly demanded and refused; or (2) the act under which the case is brought be unconstitutional.
.First. The method of trying any cause or suit must depend on either: (a) Constitutional direction, (b) legal requirement of (b) statute law or (b) controlling decision, or (c) judicial discretion. It has not been asserted that the Constitution touches' this branch of the matter.
The act under which the case is brought is silent as to the method of trial, and this, so far as I am informed, is the first trial under the fifteenth section thereof. There are therefore no directly controlling authorities. The proceeding, however, if not sui generis, somewhat resembles a bill to revoke or set aside a grant or patent, or to cancel afid vacate a judgment, and such causes are not of right triable by jury. So far as I have discretion in the matter, cases such as this will always be tried without a jury. If the enforcement of the fifteenth section of the act is to depend on the hurried hit or miss, of
Second. The unconstitutionality of an act of Congress may well be left, in all but most extraordinary cases, to the higher courts, as was done in Spreckels Co. v. McClain, 113 Fed. 214, 51 C.C.A. 201" court="3rd Cir." date_filed="1902-01-13" href="https://app.midpage.ai/document/spreckels-sugar-refining-co-v-mcclain-8746402?utm_source=webapp" opinion_id="8746402">51 C. C. A. 201. As, however, the discussion has been extended, and I recognize the attractiveness to many professional minds of much of defendant’s argument, my own inclination in the matter will be briefly noted.
(1) It is asserted that the fifteenth section of the statute is obnoxious to the “ex post facto” clause of the Constitution. It seems to me that said section is not within the definition of Calder v. Bull, 3 Dall. 386" court="SCOTUS" date_filed="1798-08-17" href="https://app.midpage.ai/document/calder-v-bull-84695?utm_source=webapp" opinion_id="84695">3 Dall. 386, 1 L. Ed. 648, nor does it inflict a penalty or punishment, within the extension of the rule created by Ex parte Garland, 4 Wall. 333" court="SCOTUS" date_filed="1867-01-14" href="https://app.midpage.ai/document/ex-parte-garland-87779?utm_source=webapp" opinion_id="87779">4 Wall. 333, 18 L. Ed. 366.
(2) The remaining objections to the act do not seem to me to raise a constitutional question. Thus it is said to be monstrous that any court other than the one which entered the judgment or decree should set it aside at the instance of one of the parties thereto, it not being pretended that the proceeding in which the judgment was entered was beyond the first court’s jurisdiction. This is familiar law, and has been applied in naturalization matters. U. S. v. Gleason, 90 Fed. 778, 33 C. C. A. 272. But no reason has been pointed out why Congress, having general and exclusive power over naturalization, should not vary this rule, and authorize the action to be brought, not in a jurisdiction from which the defendant may long have removed, but in the place where he presently resides.
It is further objected that, since the order granting Mansour citizenship is a judgment or decree entered after a hearing and the taking of testimony, there was on such hearing an opportunity to try the very issue here raised, and, Mansour having prevailed, all mere errors are cured; while the United States as a party to that judgment is estopped from showing even its fraudulent procurement, because the judgment itself is the highest evidence that there was none. For this view of the binding sanctity of judgments many cases have been cited, the strongest of wdiich is Greene v. Greene, 2 Gray (Mass.) 861, 61 Am. Dec. 454.
Well known as is this line of decisions, it remains true that courts granting naturalization have for generations revoked or canceled their own grants or judgments, when convinced that they had been imposed upon, or deceived, but only upon application of the government. The numerous cases are collected in House Doc. 326, 59th Cong. p. 131 et seq. (a letter from Secretary Root to Congress on the subject of citizenship and expatriation). This long-continued practice is not reconcilable with the view that declares a certificate of naturalization to be a judgment; but since the present act the question is academic, for here again Congress has declared that fraud or illegality shall be enough to set aside the judgment (if it be one), and no reason is stig-
Finally, the court is asked to consider the cases holding that a naturalized citizen is as much a citizen as any other, and to observe that the provisions of the act regarding the effect of five years’ residence abroad constitute, as to naturalized aliens, an unconstitutional attack upon their rights as citizens. I decline to do this; the question is not involved in this case, and, even if there be force in the contention made, the expatriation clauses of the section are clearly separable from the words authorizing and directing this proceeding.
There having been personal fraud by Mansour in the procurement of his certificate of naturalization, in that he falsely swore to the necessary residential facts, the prayer of the petition is granted.