MacDonald v. United States, 2143.

• Decision Date: 02 December 1927
• Docket Number: No. 2143.,2143.
• Citation: 22 F.2d 747
• Parties: MACDONALD v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

22 F.2d 747 (1927)

MACDONALD v. UNITED STATES.

No. 2143.

Circuit Court of Appeals, First Circuit.

December 2, 1927.

William K. Jackson, of Boston, Mass. (Andrew W. Bennett, of Boston, Mass., on the brief), for appellant.

John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

On December 22, 1926, Daniel Michael Macdonald filed in the District Court of the United States for the District of Massachusetts a petition for naturalization, in which he alleged that he came to the United States from Callao, Peru, on or about September 3, 1920, arriving at the port of New York September 17, 1920; that he had declared his intention to become a citizen of the United States on November 30, 1921; that he had resided continuously in the United States for the term of five years at least immediately preceding the date of his petition, and in the commonwealth of Massachusetts continuously for one year.

From the findings of fact reported it appears that the petitioner, since his arrival in the United States, has been continuously in the service of the United Fruit Company, a corporation organized under the laws of the state of New Jersey, having its general offices in the city of Boston, in the commonwealth of Massachusetts, as the master of several of its steamships, all of which were of British registry; that his voyages on all of such steamships commenced and ended at United States ports, principally at the port of Boston; that his wife joined him in the city of Boston September 1, 1921, and thereupon he established his residence in Somerville, Mass., and has since continuously maintained his residence in the vicinity of Boston with his wife and child.

His petition for naturalization was denied on the ground that he had served as master of vessels of foreign registry continuously since his entrance into the United States and therefore could not secure residence in the United States for naturalization purposes during the time of such service because of the provisions of subdivision 7 of section 4 of the Act of June 29, 1906, as amended by the Act of May 9, 1918, Comp. St. § 4352(7).

By the original act Congress defined in detail the requirements for naturalization, and in subdivision 4 of section 4 of the act provided as follows:

"4. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States, five years at least, and within the state or territory where such court is at the time held one year at least." 8 USCA § 382.

May 9, 1918, Congress added by amendment seven additional subdivisions of section 4, dealing in subdivision 7 with the naturalization of Filipinos, Porto Ricans not citizens of the United States, and any alien of the age of 21 years and upward who has enlisted or shall hereafter enlist in the armies of the United States, or in the United States Navy, or Marine Corps, or United States Coast Guard, or serve for three years on board of any vessel of the United States government, or for three years on board of merchant or fishing vessels of the United States of more than twenty tons burden, and provided that they might be admitted to citizenship without proof of the required five years' continuous residence in the United States, and further provided: "That service by aliens upon vessels other than of American registry, whether continuous or broken, shall not be considered as residence for naturalization purposes within the jurisdiction of the United States, and such aliens cannot secure residence for naturalization purposes during service upon vessels of foreign registry." 8 USCA § 384.

It is claimed that this prohibition applies only to the aliens with which the amendment was dealing. The proviso is not limited by terms to such aliens, but is general. It is evident that Congress, in the passage of this amendment, intended to reward aliens who had enlisted in the Army and Navy of the United States and been honorably discharged, and also to encourage service upon merchant vessels or fishing vessels of the United States. That Congress had in mind the latter purpose is evidenced by the eighth subdivision, which is as follows:

"8. That every seaman, being an alien, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served three years upon merchant or fishing vessels of the United States, * * * be deemed a citizen of the United States for the purpose of serving on board any such merchant or fishing vessel of the United States, anything to the contrary in any act of Congress notwithstanding; but such seaman shall, for all purposes of protection as an American citizen, be deemed such after the filing of his declaration of intention to become such citizen." 8 USCA § 376.

The chairman of the House Committee on Immigration and Naturalization, in the report made by him to the House of Representatives on May 3, 1918, in speaking of this seventh subdivision, said:

"The subdivision also prohibits the naturalization of aliens serving on vessels of foreign registry, this construction having been maintained by some courts in view of the provisions of section 2174, which recognizes service of aliens on vessels of American registry."

Subdivision 7 has been considered by two District Courts. In Re Nicolich, 17 F.(2d) ...