In re Deans

• Decision Date: 01 December 1913
• Parties: In re DEANS.
• Court: U.S. District Court — Western District of Arkansas

208 F. 1018

In re DEANS.

United States District Court, W.D. Arkansas.

December 1, 1913

The court finds the facts as follows:

The applicant is a native of Scotland. In November, 1906, after he had reached the age of 21 years, he emigrated to the United States. He is a boiler maker by trade and found employment in Schenectady, N.Y., where he resided for one year. He then moved to Pittsburgh, Pa., where he worked at his trade for one year, and in November, 1908, moved to Little Rock, Ark., where he worked in the railroad shops intending to make that city his permanent home. In July 1910, he visited his mother in Scotland, being out of the United States for about two months. He then returned to Little Rock, which he has claimed as his residence ever since he arrived in this state. In December, 1910, he was employed by the Isthmian Canal Commission at the shops in Grogona within the Panama Canal Zone, having passed a satisfactory examination before his employment. He remained there four months, when he was discharged for the reason that he was not a citizen of the United States. He thereupon returned to his former home in Little Rock, Ark., where he has resided ever since. At the time he accepted employment in Panama he intended to remain there only a few months, not exceeding a year, and then return to Little Rock.

His declaration of intention to become a citizen of the United States was made more than two years prior to the filing of this application. He is a man of good moral character intelligent, thoroughly familiar with our system of government, and in every way qualified to make a good citizen of the United States, if the facts above recited are sufficient to establish the fact that he has resided continuously in the United States for more than five years within the meaning of the naturalization acts.

M. R. Bevington, of St. Louis, Mo., for the United States.

TRIEBER, District Judge (after stating the facts as above).

On behalf of the government, objections are made to the granting of the petition owing to the absence of the applicant from the United States as set out in the findings of facts. It is claimed that during the time he was absent he was not a resident of the United States, nor was his residence continuous as required by the provisions of the naturalization act.

The word 'residence' is an elastic term, of which no exact definition, which is applicable in all cases, can be given at law, but must be construed in every case in accordance with the object and intent of the statute in which it occurs. Lewis v. Graham, 20 Q.B.D. 780; Rindge v. Green, 52 Vt. 208; People v. Tax Commission (Sup.) 16 N.Y.Supp. 835. But it has been generally held whether a party's removal constitutes a change of residence depends upon his intention in making such removal, or, as stated in The Venus, 8 Cranch, 253, 279 (3 L.Ed. 553), a leading case which has been frequently followed with approval:

'In questions on this subject the chief point to be considered is the animus manendi; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicile is acquired by residence of a few days. This is one of the rules of the British courts, and it appears to be perfectly reasonable.'

The converse of the rule is equally correct.

As shown by the findings of facts made by the court, the intention of the applicant was not to change his residence which he had established in this country when he left for Great Britain or the Panama Canal Zone; but, on the contrary, his intention was to retain his residence in the United States, the absences being only temporary, the one for pleasure and the other on business. But it is contended that the language used in the naturalization act of 1906, as well as some of the former acts, is that 'he has resided continuously within the United States five years at least. ' Counsel for the government rely upon the definition given by the different lexicographers of the word 'continuous,' and insist that it means 'unbroken,' and that therefore the petitioner has not resided continuously within the United States for the five years preceding his application.

In construing statutes the general rule is that the words used will be given their ordinary meaning in common use, but the duty of the courts, when construing a statute, is to carry into effect the intention of the lawmaking department when that can be done without doing violence to the language used. Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 4 L.Ed. 841; Stevens v. Nave-McCord Merc. Co., 150 F. 71, 75, 80 C.C.A. 25, 29; United States v. Lewis (D.C.) 192 F. 633, 639, and authorities there cited. Another well-established rule is that when a statute is passed on a subject which is covered by existing statutes, and words are taken from the former statute which had theretofore been construed a number of times either by the courts or the chief executive officers of the government who are charged with the execution of the statute, the courts will conclusively presume that Congress used the language in the sense in which it had been previously construed. United States v. Mayes, 12 Wall. 177, 20 L.Ed. 381; Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429; United States v. Baruch, 223 U.S. 191, 32 Sup.Ct. 306, 56 L.Ed. 399; Latimer v. United States, 223 U.S. 501, 32 Sup.Ct. 242, 56 L.Ed. 526; Hemmer v. United States (C.C.A.) 204 F. 905. Applying these rules of construction to the act, it is advisable to examine the history of the legislation on the subject of naturalization, and also the construction placed upon the former acts. The court has been unable to find any reported decisions on this subject prior to the enactment of the act of 1906; but there are a number of opinions by Secretaries of State, and one opinion of the Attorney General, to which reference will be made hereafter.

The first naturalization act was enacted March 26, 1790 (chapter 3, 1 Stat. 103). This act was repealed by the act of January 29, 1795, c. 20, 1 Stat. 414, which was a new act covering the entire subject. The next act was that of April 24, 1802, c. 28, 2 Stat. 153. In neither of these acts was a 'continuous' residence required. The first act in which that word was used was the Act of March 3, 1813, c. 42, 2 Stat. 809. The bill for that act, when introduced, contained nothing in relation to naturalization, but, as is shown by its title, was intended as 'An act for the regulation of seamen on board the public and private vessels of the United States. ' The following section was attached as a rider to that act:

'Sec. 12. That no person who shall arrive in the United States, from and after the time when this act shall take effect, shall be admitted to become a citizen of the United States, who shall not for the continuous term of five years next preceding his admission as aforesaid have resided within the United States, without being at any time during the said five years, out of the territory of the United

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