United States v. Jordan, 9171.

• Decision Date: 23 May 1947
• Docket Number: No. 9171.,9171.
• Citation: 161 F.2d 390
• Parties: UNITED STATES ex rel. VOLPE v. JORDAN.
• Court: U.S. Court of Appeals — Seventh Circuit

161 F.2d 390 (1947)

UNITED STATES ex rel. VOLPE v. JORDAN.

No. 9171.

Circuit Court of Appeals, Seventh Circuit.

February 12, 1947.

Rehearing Denied May 23, 1947.

Guy C. Crapple, of Chicago, Ill. for appellants.

J. Albert Woll, U. S. Atty., and John Peter Lulinski, Asst. U. S. Atty., both of Chicago, Ill., for appellee.

Before SPARKS and MAJOR, Circuit Judges, and HOLLY, District Judge.

MAJOR, Circuit Judge.

Upon a further study of this case in connection with the petition for rehearing, we are of the view that our former opinion should be vacated and set aside. The appellants, Anthony Volpe (hereinafter referred to as the petitioner) and Sarah Johnson Volpe, are husband and wife. An amended petition for writ of habeas corpus was filed by the wife on behalf of the husband. The court below sustained appellee's (respondent's) plea in bar to such amended petition, and this appeal comes from the judgment of the court sustaining such plea.

It was sought by the petition to obtain the release of Volpe from the custody of respondent (the District Director of Immigration), pending deportation proceedings. There is no occasion to relate the facts upon which rests the order of deportation long ago entered. They may be found in a proceeding by Volpe, decided adversely to him by this court in United States ex rel. Volpe v. Smith, etc., 7 cir., 62 F.2d 808, and affirmed by the Supreme Court in United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298.

The amended petition alleges that Volpe is being held in the custody of respondent on a warrant to deport him to Italy as an alien. It recites that Volpe entered the United States March 31, 1906, with his parents, that he subsequently married and has a family consisting of a wife and three children. It alleges that on the 31st day of January, 1916, he filed his declaration of intention to become a citizen of the United States, that on July 18, 1918 he filed his petition for naturalization in the Superior Court of Cook County, Illinois, "that on the 27th day of March 1920, by Order of the Superior Court of Cook County, Illinois, the relator was admitted to citizenship in the United States of America and certificate of such citizenship No. 1345264 was issued to him by the Clerk of the Superior Court of Cook County, Illinois, pursuant to the Order of said Court. That on the aforesaid March 27, 1920, relator subscribed and swore to the oath of allegiance to the United States of America, which said oath was filed of record in the Superior Court of Cook County, Illinois, in naturalization proceeding No. 30179, that he renounced allegiance to the King of Italy, in consequence of which, from the 27th day of March 1920 he no longer was and is not now a subject of the King of Italy nor a citizen of the State or Government or Country of Italy." The petition continues with allegations about which the instant controversy revolves, as follows: "That on April 3, 1920, the Superior Court of Cook County, Illinois, vacated and set aside its order of March 27, 1920, by which the relator became a citizen of the United States. That said Order recited it was being done on the motion of the United States and did not recite or find that relator was given any notice of said motion. That said motion was not in writing and never was filed of record in the Superior Court of Cook County, Illinois. That relator did not receive any notice of said motion and no notice to relator or anyone else of said motion was ever filed of record in the Superior Court of Cook County, Illinois. That on April 3, 1920, the Superior Court of Cook County had no jurisdiction over the relator to enter any Order against him in proceeding No. 30179 or in any other proceeding, and that the Order of the Superior Court of Cook County, Illinois, entered on April 3, 1920, vacating and setting aside its judgment naturalizing the relator on March 27, 1920, was null and void and of no effect whatsoever."

As stated, respondent filed a plea entitled a "Plea in Bar" which alleged, so far as here material, "All of the questions involved in the alienage of Anthony Volpe and all of the questions involving the deportability of the said Anthony Volpe have heretofore been adversely determined to the said Anthony Volpe by the Supreme Court of the United States; United States ex rel. Anthony Volpe v. S. D. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, and by the Circuit Court of Appeals for the Seventh Circuit, United States ex rel. Anthony Volpe v. S. D. Smith, 62 F.2d 808, 809." There was also filed in connection with and in support of this plea a transcript of the record, together with the briefs and argument filed in the case heretofore before this court. In further support of said plea, there was filed the mandate of the Supreme Court of the United States, which followed its decision above referred to.

Thus petitioner by the allegations of his petition presented the vital issue as to the validity of the order of the Superior Court of Cook County, entered April 3, 1920, which purported to vacate and set aside the same court's order of March 27, 1920, by which petitioner was decreed to be a citizen of the United States. In considering such issue, we must accept the facts as alleged and determine whether or not they are sufficient to require an answer. If the order of April 3 was valid, it follows that petitioner was effectually deprived of the citizenship status awarded him by the decree of March 27. On the other hand, if the order of April 3 was entered without authority, it was void and it must follow that petitioner was not deprived of the right conferred upon him by the decree of March 27. In other words, he was made a citizen by the court's decree of March 27 and remains a citizen unless that right has been taken from him in a manner authorized by law. In such case, he would not be subject to deportation and all the proceedings subsequently had are of no consequence.

We think respondent's plea in bar may be disposed of in short order. It is plainly apparent from a reading of the opinion of this court (7 cir., 62 F.2d 808), as well as that of the Supreme Court (289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298), that the question now presented was not decided. The unmistakable fact is that this court is well as the Supreme Court assumed for the purpose of deciding the validity of the deportation proceedings that petitioner was an alien and not a citizen. More than that, the former case was in habeas corpus, as is the instant one, and the doctrine of res judicata is not applicable. Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999; Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. We therefore are of the view that respondent's plea in bar was improperly sustained.

At this point it is pertinent to note that petitioner both in his petition and in his brief filed in this court assails the validity of the Superior Court order of April 3, 1920, upon the ground that it was contrary to the rules of the Superior Court, which provide in effect that no motion will be heard or order made in any case without one day's written notice to the opposite party. Respondent before this court does not contend that this rule was complied with or that petitioner had any notice prior to the court's order of April 3, 1920, but argues that petitioner by his subsequent conduct recognized the order as valid and binding. We also note that petitioner on August 24, 1945 filed in the Superior Court of Cook County a petition to set aside and expunge from the record the order entered April 3, 1920, vacating the court's previous order admitting him to citizenship. This petition was denied on the ground that the court was without jurisdiction. On appeal, such dismissal was affirmed by the Appellate Court of Illinois, 328 Ill.App. 311, 66 N.E.2d 146 (abstract), and leave to appeal was denied by the Supreme Court of Illinois on September 23, 1946.

Respondent places much stress upon the opinion of the Appellate Court. It is true that court proceeded to discuss and apparently decide that the decree of March 27, 1920, by which petitioner was made a citizen, was properly vacated and set aside, although the only question raised on appeal was whether the lower court had jurisdiction to expunge the order of April 3. So far as shown, the attention of the Illinois court was not called to the Federal provision which specifically provides the manner in which such a decree may be vacated and revoked. Moreover, we are of the view, as subsequently shown, that the question for decision is controlled by Federal law and that a decision of a State court predicated upon the construction of a court rule is of no consequence.

This case has been presented and argued on the theory that petitioner's certificate of naturalization was unlawfully vacated and set aside because no notice was given to him in compliance with a rule of the Superior Court of Cook County. In our view, there is a better, in fact we think a controlling, reason why the allegation that no notice was given presents a triable issue. The Congress of the United States by the terms of the Federal Constitution has by specific and definite legislation enumerated the requirements to be met by an alien in order to become a naturalized citizen, and likewise by equally definite and specific legislation the requirements to be met in revoking a certificate of naturalization.

In Baumgartner v. United States, 322 U.S. 665, 672, 64 S.Ct. 1240, 1244, 88 L.Ed. 1525, the court stated: "Congress alone has been entrusted by the Constitution with the power to give or withhold naturalization and to that end `to establish a uniform Rule of Naturalization.' Art. I, § 8, Clause 4. In exercising its power, Congress has authorized the courts to grant American citizenship only if the alien has satisfied the conditions imposed by Congr...