In re McNabb
| Decision Date | 06 December 1909 |
| Citation | 175 F. 511 |
| Parties | In re McNABB. |
| Court | U.S. District Court — District of Oregon |
John McCourt, U.S. Atty.
William Crichten McNabb petitioned to be naturalized a citizen of the United States in the usual form, but his petition is not verified by two or any witnesses. Notice was given of the filing of the petition, and of the time fixed for hearing for the requisite 90 days. Depositions were taken touching residence, moral character, and fitness to become a citizen upon notice to the United States district attorney given in accordance with the regulations of the Department of Commerce and Labor, Bureau of Immigration and Naturalization, Division of Naturalization, which designated the person before whom the same should be taken and certified. Objection is interposed to the admission of the petitioner upon two grounds: First, that the petition does not contain the verification of two witnesses as required by Act June 29 1906, c. 3592, Sec. 10, 34 Stat. 599 (U.S. Comp. St. Supp. 1909, p. 482); and, second, that it is not competent for the petitioner to make proof of his qualifications to become a citizen by depositions.
The petitioner is an honorably discharged soldier. This fact is proven by the production of his discharge. Section 2166, Rev St. U.S. (U.S. Comp. St. 1901, p. 1331), provides for the admission to citizenship of such a person. By that section he is relieved from the necessity of making previous declaration of intention, as is required in ordinary cases, and he need prove but one year's residence within the United States. No time is specified for proof of residence within the state in which he applies for admission to citizenship. The late statute of 1906 requires that the petition shall be verified by the affidavits of at least two credible witnesses, who shall state that they have personally known the applicant to be a resident of the United States for the period of at least five years continuously, and of the state in which the application is made for the period of at least one year immediately preceding the date of the filing of the petition.
It is at once manifest that such a showing is wholly inapplicable to the case of an honorably discharged soldier, because he is neither required to have been a resident of the United States for five years nor of the state for one year continuously. What, then, must have been the purpose of Congress in such a case? The answer is satisfactorily given by Ward, Circuit Judge, in Re Loftus (C.C.) 165 F. 1002. He holds that section 2166 must still be read in connection with the old section 2165 (U.S. Comp. St. 1901, p. 1330), which was the law at the time the former section was adopted, and this by reason of the words 'as now provided by law,' used in section 2166 in relation to the manner of proof of residence and the character of the applicant; the word 'now' having relation to the law then in existence, and not to something that might receive the sanction of Congress thereafter. This is reasonable, and proceeds from the fact that by the act of 1906 Congress expressly repealed other sections of the naturalization law, but left this to stand, so that it cannot be...
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