Application of Murra, 9327.

• Decision Date: 16 April 1948
• Docket Number: No. 9327.,9327.
• Citation: 166 F.2d 605
• Parties: Application of MURRA.
• Court: U.S. Court of Appeals — Seventh Circuit

166 F.2d 605 (1948)

Application of MURRA.

No. 9327.

Circuit Court of Appeals, Seventh Circuit.

February 11, 1948.

Rehearing Denied April 16, 1948.

William H. King, Jr., Richard H. Merrick, and Henry Heineman, all of Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., and John P. Lulinski and Francis J. Cody, Asst. U. S. Attys., all of Chicago, Ill. (Dewey G. Hutchinson, Immigration and Naturalization Service, of Chicago, of counsel), for appellee.

Before SPARKS, MAJOR and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from an order entered January 17, 1947, denying and dismissing petitioner's petition for naturalization filed November 21, 1944. The Immigration and Naturalization Service conducted a preliminary hearing, as provided by Sec. 733(a) and (b), Title 8 U.S.C.A., and recommended that such petition be denied, stating as a reason therefor: "Petitioner has failed to establish that he has been attached to the principles of the Constitution and well disposed to the good order and happiness of the United States for the period required by law; also, petitioner has failed to establish good moral character during the period required by law."

A final hearing upon such petition was had in open court, as provided by Sec. 734 (a) and (b), Title 8 U.S.C.A., and a number of witnesses were heard. It appeared from a colloquy between the court and counsel for the Immigration and Naturalization Service that the same objections were interposed to the granting of the petition as had been assigned by the Immigration and Naturalization Service as its reasons for denial. No findings of fact or conclusions of law were made by the District Court. The record shows only that at the conclusion of the hearing the court ordered that the petition "is hereby denied and that said petition be and is hereby dismissed."

Most of the testimony at the hearing before the court was directed at the contention that petitioner was not "attached to the principles of the Constitution," and it related almost, if not entirely, to petitioner's statements, activities and conduct prior to five years before the filing of his petition for naturalization. There was also testimony relevant to the contention that petitioner was not "a person of good moral character." The government argues here that the five year period designated by Sec. 707(a), Title 8 U.S.C.A., is a minimum period and that testimony beyond that period may be utilized for the purpose of disqualifying a petitioner. We need not presently consider or decide the validity of this contention.

We are now confronted with a situation, in the absence of any findings by the court, as to whether the petition was denied because petitioner was not a person of good moral character or whether it was because he was not attached to the principles of the Constitution, or both. Nor do we know whether the petition was denied on testimony concerning petitioner's activities and conduct during the five year period immediately preceding the filing of his petition or the testimony as to his activities and conduct prior thereto.

While the question was not raised except during oral argument before this court, we think it is an appropriate occasion on our own volition to consider and decide whether a District Court is required to make findings of fact and enter its conclusions of law in a proceeding of the instant character. Fairness to the parties, to the court below as well as this court suggest the importance of such a ruling. The question requires a determination as to whether Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is applicable. This rule provides: "In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment * * *." This rule, if applicable, is mandatory. Bach et al. v. Friden Calculating Mach. Co. et al., 6 Cir., 148 F.2d 407, 409-411.

Evidently this rule is controlling unless made inapplicable by Rule 81(a) (2), which provides: "* * * they the rules are not applicable otherwise than on appeal except to the extent that the practice in such proceedings is not set forth in statutes of the United States * * * admission to citizenship, habeas corpus, quo warranto, and forfeiture of property for violation of a statute of the United States."

The language of this rule indicates that it was the purpose to make the rules inapplicable to the category of proceedings therein enumerated only where the practice in such proceedings was provided by statute. To put it another way, if the practice in such proceedings was provided for by statute, the rules become inoperative but if the practice is not so provided for they are controlling and Rule 81(a) (2) is of no consequence. It seems obvious that this rule was for the purpose, as to the proceedings therein designated, of avoiding conflict between procedure prescribed by the rules and that prescribed by statute.

It is necessary, therefore, to consider the statutory procedure in a naturalization proceeding with the view of ascertaining if the practice thereby provided conflicts with the requirements of Rule 52. Sec. 733, Title 8 U.S.C.A., provides for preliminary hearings before a commissioner who is authorized and directed to take testimony, to make findings upon such preliminary hearing and to make recommendations to the court that the petition be granted, or denied, or continued, with the reasons therefor. Sec. 734 relates to final hearings and provides that such hearings "shall be had in open court before a judge or...