Application of Wiebe

• Decision Date: 04 February 1949
• Docket Number: No. 1717.,1717.
• Parties: Application of WIEBE.
• Court: U.S. District Court — District of Nebraska

82 F. Supp. 130

Application of WIEBE.

No. 1717.

United States District Court D. Nebraska, Lincoln Division.

February 4, 1949.

Charles A. Rain, of Council Bluffs, Iowa, for the United States.

F. W. Carstens (of Carstens & Pickett), of Beatrice, Neb., for Jacob A. Wiebe, applicant.

DELEHANT, District Judge.

Jacob A. Wiebe (herein called the applicant), born October 27, 1918, of German ancestry in Russia, a Russian national residing in the United States since October 3, 1923, and now the husband of a citizen by birth of the United States, has applied for naturalization under Section 311 of the Nationality Act of 1940, Title 8 U.S.C.A. § 711.

The United States has filed a motion to dismiss his petition upon the ground that he "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". Section 307(a) of the Nationality Act of 1940, Title 8 U.S. C.A. § 707(a) (3). The sole question is the eligibility for citizenship of the applicant, notwithstanding his declared unwillingness, because of his religious convictions, to give more than a limited measure of service in defense of the constitution and laws of the United States.

The issue thus made has been submitted to the court upon certain portions of the departmental record on his application and upon the oral testimony of the applicant. The pertinent facts, which are simple and undisputed, may be stated briefly.

It is conceded that in all respects the applicant is worthy of citizenship unless he is barred from its reception by the following circumstances. He is, and since his birth has been, a member of the religious society known as the Mennonite church, one of whose tenets is the principle of nonresistance. He subscribes sincerely to that principle. In his petition he answered negatively the question, "If necessary, are you willing to take up arms in defense of this country?" In 1941, as a registrant under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., he claimed exemption from both combatant and noncombatant military service, but, also claiming occupational deferment as a farmer, was accorded a classification IIIa. In statements to immigrant inspectors incident to his present application, he signified his unwillingness, resting in religious scruples, to bear arms or to engage in noncombatant activities as a member of any branch of the military service or to perform any work incident to international hostilities, which in its very nature is necessarily and directly of military significance, such as the making of arms or munitions, but his willingness during such an emergency to engage under civilian direction in any work of national importance, even though it might incidentally contribute to the military defense of the country, such as the production or preservation of food, supplies, machinery (exclusive of weapons) and the like. As a witness before the court, he reiterated his position, but added that, in the preservation during an international war of the nation's property he would willingly serve, though the general supervision of such effort were under military control, provided he should not be required to enter the military establishment; that he would gladly participate in any activity of national importance under civilian direction required by the nation of conscientious objectors to any and all military service; and that he would purchase bonds by which the country might raise money for the prosecution of a war, and contribute to service and welfare funds inspired by war.

The immediately applicable portion of the statute, Title 8 U.S.C.A. § 707(a) follows: "No person, except as hereinafter provided in this chapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years and within the State in which the petitioner resided at the time of filing the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." (Emphasis added.)

Whether the scruples to which the applicant's religious convictions prompt him intercept his attachment to the principles of the Constitution and his appropriate disposition to the good order and happiness of the United States is the burden of the court's inquiry.

In 1942, dealing with issues indistinguishable from those now before it, this court denied an earlier petition for admission to citizenship tendered by the applicant. Its action in that direction was believed to be compelled by the controlling authority of United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319. And if the majority opinions in those cases were still entitled to authoritative recognition the present ruling would not depart from that made in 1942.

But the intervening seven years have witnessed changes. Within that period the minority (not in personnel, for the dissenters are dead, but rather in thought) in the Schwimmer, Macintosh and Bland cases has become the court; and its dissents have become the law. In Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084, those earlier cases were expressly overruled, and their dissenting opinions were cited copiously and followed. Therefore, a trial court, in a comparable proceeding, must now have regard principally to the prevailing opinion in the Girouard case, and to the dissents in the Schwimmer, Macintosh and Bland cases. And its thinking should be measurably fortified by the examination of the opinions of the Circuit Courts of Appeals in Schwimmer v. United States, 7 Cir., 27 F. 2d 742; Macintosh v. United States, 2 Cir., 42 F.2d 845; and Bland v. United States, 2 Cir., 42 F.2d 842, which were all carefully considered and may now be said to have been restored to authoritative stature by the logic, if not the express language, of the majority opinion in the Girouard case.

The Girouard decision should not be regarded as an abrupt departure by the Supreme Court from a previously unvaried course. It is true that between the Macintosh and Bland rulings in 1930, and the Girouard opinion in 1946, no deliverance of that court in a naturalization proceeding had formally nullified its pronouncements in those earlier cases. But, in many other applications of the constitutional guaranty of religious freedom, or of freedom of speech or of the press, the court had expressed views that could not be reconciled with the thought of the majority holdings in the Schwimmer, Macintosh and Bland rulings. Among many others may be mentioned, Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U. S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A. L.R. 1352; Jones v. City of Opelika, 319 U. S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Jamison v. State of Texas, 318 U.S. 413, 63 S. Ct. 669, 87 L.Ed. 869; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81; Martin v. City of Struthers, Ohio, 319 U. S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Taylor v. State of Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L.Ed. 1600; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A. L.R. 674; Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. State of Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274. Of those rulings, some involved the explicit abandonment of positions theretofore taken and positively declared by that court. e. g. Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493; and Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L. Ed. 1691, 141 A.L.R. 514.

The impact of such of those decisions as had been announced by the autumn of 1942 prompted Senior Circuit Judge Parker, speaking for a three judge court in Barnette v. West Virginia State Board of Education, D.C.W.Va., 47 F.Supp. 251, 253, to decline to follow Minersville School District v. Gobitis, supra, and to emphasize by illustration his observation that "* * * decisions are but evidences of the law and not the law itself". That view and the decision bottomed on it were affirmed by the Supreme Court in West Virginia State Board of Education v. Barnette, supra. In like spirit, and more directly upon the present issue, Judge Woodbury, in 1945, in United States v. Girouard, 1 Cir., 149 F.2d 760, predicated his dissent from the denial of citizenship to Girouard upon the ground that, by the logic of the then more recent decisions of the Supreme Court, the majority holdings in the Schwimmer, Macintosh and Bland cases no longer reflected the law. His position prevailed in Girouard v. United States, supra.

Upon the present submission, the government correctly asserts that in the Girouard case the alien admitted to...