In re Samowich, 9979.

• Decision Date: 14 March 1947
• Docket Number: No. 9979.,9979.
• Citation: 70 F. Supp. 273
• Parties: In re SAMOWICH.
• Court: U.S. District Court — Western District of Washington

70 F. Supp. 273

In re SAMOWICH.

No. 9979.

District Court, W. D. Washington, S. D.

March 14, 1947.

Stuart H. Elliott, of Tacoma, Wash., for petitioner, Anton Samowich.

J. Charles Dennis, U. S. Atty., and Guy A. B. Dovell, Asst. U. S. Atty., both of Tacoma, Wash., in opposition to petition.

LEAVY, District Judge.

The petitioner herein is a fifty-nine-year-old native and national of what was formerly Lithuania, and has resided in the United States since June 24, 1909. He filed his first declaration of intention to become a citizen January 3, 1913, in the Superior Court of the State of Washington for Pierce County. He thereafter registered under the provisions of the Draft Act of May 18, 1917, for the First World War, c. 15, § 2, 40 Stat. 77, 50 U.S.C.A. § 226 note.

November 2, 1918, the petitioner executed a withdrawal of his declaration of intention to become a citizen of the United States, in which he stated that he understood such withdrawal would operate and be held to cancel his declaration of intention to become an American citizen and forever debar him from becoming one, in accordance with the Registration and Drafting of Aliens Act of July 9, 1918, C. 143, Subchap. XII, § 4, 40 Stat. 885, also the Act of August 31, 1918, C. 166, § 1, 40 Stat. 955, which amended the Draft Act of May 18, 1917, 50 U.S. C.A. § 226 note.

The petition to withdraw the alien's declaration of intention to become a citizen was received by the Bureau of Naturalization December 23, 1918. Based upon this application, a petition was filed by the Chief Naturalization Examiner in the Superior Court of the State of Washington for Pierce County on April 12, 1919, praying that the declaration of intention made by the alien on January 3, 1913, be cancelled and held for naught. Thereafter, on April 14, 1919, an order was entered by that court decreeing that the declaration of intention of the alien be cancelled and that he be forever debarred from becoming a citizen of the United States.

March 3, 1928, the petitioner filed in this court his second declaration of intention, and, on February 9, 1935, based upon such declaration, he made application for citizenship. The petition came on for final hearing May 27, 1935, and, upon such hearing, a formal order was entered denying the application with prejudice on the ground that the petitioner had secured a cancellation of his original declaration in order to avoid military service under the then existing Draft Act, thus securing exemption from liability for military service. This court expressly decreed that he was to be forever debarred from becoming a citizen, as provided in the Act of July 9, 1918, as amended by the Act of February 11, 1931, C. 118, 46 Stat. 1087.

October 9, 1945, the petitioner, then being the spouse of an American citizen, filed his petition for citizenship in this court, establishing eligibility under the provisions of § 310(b) of the Nationality Act of 1940, 54 Stat. 1144, Subchap. III, 8 U.S.C.A. § 710(b).

December 30, 1946, this third and last petition came on for hearing before me. The petitioner was recommended for citizenship by the Naturalization Service at such hearing, and the facts herein enumerated were brought to my attention. It was asserted by the Examiner that the petitioner had met all the qualifications, and measured up to the standards required of aliens seeking citizenship through naturalization. Whereupon, the matter of granting or denying citizenship was submitted for determination.

In view of the order of the state court granting the application of the petitioner to withdraw his declaration of intention and thereby avoid liability for military service, and forever debarring him from citizenship, and in view of the subsequent order of this court unqualifiedly debarring him from forever becoming a citizen, it was determined that his petition herein should be given special consideration. Upon my own motion, the petition was set down for hearing. The Naturalization Service having recommended the petitioner for citizenship, I requested the United States Attorney to appear adverse to such recommendation. The petitioner employed counsel, and the matter came on for hearing January 13, 1947. Oral and documentary evidence was introduced, and briefs were submitted by petitioner's attorney in his behalf and by the United States Attorney in opposition thereto.

The petitioner contends that the previous orders entered in connection with the withdrawal of his declaration of intention and his later application for citizenship, are not res judicata, because the Nationality Act of 1940 expressly repealed the statutes which resulted in the orders forever debarring him from citizenship. 8 U.S.C.A. § 747(a). He further contends that the Act of February 11, 1931, was effective at the time of the entry of the order of this court on May 27, 1935, which Act had the effect of restoring to him any rights that he may have lost by reason of the original withdrawal of his declaration of intention, and nullified the order of the state court made April 14, 1919.

The petitioner relies upon two District Court decisions in support of the position he takes: In re Aldecoa, 22 F.Supp. 659; Petition of Otness, 49 F.Supp. 220.

The United States Attorney contends that the Act of February 11, 1931, at no time was applicable to the petitioner herein, and that the cases of In re Urmeneta, D.C., 42 F.Supp. 138, and Lakebo v. Carr, 9 Cir., 111 F.2d 732, are controlling.

The proceedings in which the order made by the state court and, likewise, the later order by this court in denying citizenship were both judicial proceedings, and the orders were decrees from courts of record and became final when not modified or reversed. The Supreme Court of the United States, in passing upon an order in a naturalization proceeding in Tutun v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 427, 70 L.Ed. 738, stated the law as follows: "The judgment entered, like other judgments of a court of record, is accepted as complete evidence of its own validity unless set aside. * * * It may not be collaterally attacked."

The petitioner maintains that these orders did not constitute res judicata of...