Mah Toi v. Brownell

• Decision Date: 16 February 1955
• Docket Number: No. 13563.,13563.
• Citation: 219 F.2d 642
• Parties: MAH TOI, Appellant, v. Herbert BROWNELL, Jr., as Attorney General, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

219 F.2d 642 (1955)

MAH TOI, Appellant, v. Herbert BROWNELL, Jr., as Attorney General, Appellee.

No. 13563.

United States Court of Appeals, Ninth Circuit.

February 16, 1955.

Jackson & Hertogs, Joseph F. Hertogs, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, POPE, Circuit Judge, and BOLDT, District Judge.

BOLDT, District Judge.

Appellant seeks to establish that he is a citizen of the United States, proceeding under 8 U.S.C. § 903^* and basing his claim to such status on the allegation that he was born in the City of San Francisco, California on November 1, 1902 and by reason of native birth is a citizen under the Fourteenth Amendment to the federal Constitution. The only evidence offered at the trial in support of appellant's petition was the personal testimony of appellant and the admission in evidence of the judgment roll in Cause No. 14,143 of the California Superior Court for San Francisco County wherein an order of that court dated November 21, 1923, recites that one Mah Toi, the son of Mah Lin Ong and Wong Shee, was born on November 1, 1902 in the City and County of San Francisco, State of California. A certified copy of the order was admitted in evidence on the testimony of appellant that he is the person named in the order and that the copy had been in his possession from November, 1923 until January, 1949 when it was given to the immigration authorities at San Francisco on appellant's return to the United States from a visit in China of almost two years.

In appellant's petition it is alleged, in effect, that appellant is the person named in the order referred to. Answering such allegation, appellee denied that appellant was born at the place and on the date alleged and denied that a "judgment establishing fact of plaintiff's birth in the United States was entered by superior court of State of California," but the answer admits that "order establishing the fact of plaintiff's birth at the place and on the date alleged was entered by the California Superior Court for San Francisco County on November 21, 1923." In appellee's brief it is contended that appellant did not establish his identity as the person named in the superior court order, but the admissions in the answer preclude appellee from urging such contention. Neither proof nor finding is required in support of an allegation admitted in the pleadings. Sun-Maid Raisin Growers Ass'n v. Neustadter Bros., 9 Cir., 115 F.2d 126; Fontes v. Porter, 9 Cir., 156 F.2d 956.

After hearing the evidence the district court took the cause under advisement and thereafter entered a finding of fact that appellant was not born in the United States, a conclusion of law that appellant is not a national of the United States, and a judgment holding appellant not a national or citizen of the United States. The appeal from the judgment specifies error in both the finding and conclusion, and in the failure of the district court to give full faith and credit to the California superior court order.

Appellant acknowledges that the burden rested on him to "establish the ultimate facts by a preponderance of the evidence." The ultimate fact to be so established was that appellant was born in the United States. Appellant contends that the burden of proof was sustained: first, because the superior court order was a final and conclusive adjudication of the fact; and second, because the order, together with appellant's testimony, made a prima facie showing of the fact which was not rebutted by the evidence.

The frequent assertions in appellant's brief that the superior court order conclusively established the fact of appellant's birth as stated in the order are not supported by citation of California statute or decision or other authority and we have found no authority to such effect. 28 U.S.C. § 1738 provides that state "* * * records and judicial proceedings or authenticated copies thereof * * * shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such state * * * from which they are taken." The question is: What "faith and credit" do California superior court orders determining place and time of birth entered in pursuance of Section 10600 of the California Health and Safety Code have under the statute and decision law of that state? Nowhere in the particular statutory section authorizing entry of such orders, or in the chapter of which it is a part, is there any statement as to the evidentiary effect of such orders. The several California statutes generally defining the evidentiary effect of various orders, judgments and presumptions do not contain any provision applicable to orders made under Section 10600.

Section 10600 is found in a chapter entitled "Proceedings to Establish Record of Birth, Death or Marriage", which chapter is in a subdivision designated "Vital Statistics" of the California Health and Safety Code. The wording of the section and its context make it clear that a judicial order determining place and date of birth under Section 10600 is a statistical record substituting for a birth certificate when the birth "was not at...