Petition of Easurk Emsen Charr

• Decision Date: 16 April 1921
• Docket Number: 2453-M.
• Citation: 273 F. 207
• Parties: Petition of EASURK EMSEN CHARR.
• Court: U.S. District Court — Western District of Missouri

273 F. 207

Petition of EASURK EMSEN CHARR.

No. 2453-M.

United States District Court, W.D. Missouri, Western Division.

April 16, 1921

On Rehearing, June 6, 1921.

Cameron L. Orr, of Kansas City, Mo., for petitioner.

M. R Bevington, of St. Louis, Mo., and C. A. Ramsey, of Kansas City, Mo., for the United States.

VAN VALKENBURGH, District Judge.

The petitioner is a native of Korea, owing allegiance to and a subject of the Mikado of Japan, a resident of Parkville, Mo as a student of Park College. He was drafted into the United States army, serving therein from April 15, 1918, to December 28, 1918, receiving an honorable discharge from such service. His service was at military training camps within the United States. His educational qualifications, character, and record of military service are good. His naturalization is not opposed on personal grounds, but upon the contention that all members of his race are barred from naturalization under the provisions of section 2169 of the Revised Statutes of the United States (Comp. St. Sec. 4358). He seeks to be naturalized under 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. 1918, Comp. St. Ann. Supp. 1919, Sec 4352(7)), and by the subsequent Act of July 19, 1919 (41 Stat. 222). Section 2169, imposing limitations upon eligibility for naturalization, reads as follows:

'The provisions of this title (of naturalization) shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent.'

The applicant is admittedly neither of African nativity nor of African descent. The question at issue is whether he is a white person within the meaning of this section, and, if not, whether he is still entitled to citizenship because of the alleged exceptions made by the acts of Congress to which reference has been made.

The meaning of section 2169 has become so far clarified by late judicial decisions that we are confronted by no embarrassment in determining the question of color in so far as that controls. In ex parte Dow (D.C.) 211 F. 486, and In re Dow (D.C.) 213 F. 355, it was held that the words do not mean a person white in color, nor do they designate racial distinction, meaning Caucasian or Indo-European, but are to be construed rather as a geographical term, referring to the peoples who were commonly known in the United States as those inhabiting Europe, and whose descendants, at the time of the passage of the act of 1790 (1 Stat. 103), formed the inhabitants of the United States, excluding Africans. In those cases, a Syrian from the Lebanon district-- that is to say, from that part of the Mediterranean coast in Asia occupied in ancient times by the Phoenicians-- was denied admission to citizenship upon the ground that he was not a free white person within the meaning of section 2169. The holding in those cases was rejected by the Circuit Court of Appeals for the Fourth Circuit in the same entitled case. 226 F. 145, 140 C.C.A. 549. In accordance with numerous holdings the term includes, as commonly understood, all European races and those Caucasians belonging to the races around the Mediterranean Sea, whether they are considered as fair whites or dark whites, and though certain of the eastern and southern European races are technically classified as of Mongolian or Tartar origin. Generally speaking, 'free white persons' includes members of the white or Caucasian race as distinct from the black, red, yellow, and brown races.

Whether or not historically the term 'Caucasian' is accurate as a designation of the white race, it is a term which appeals to common understanding and to that of the lawmakers with practical definiteness, and the term 'white person' may now be said to have a well understood meaning. In the case at bar we are not troubled by close refinements of definition, either as to race, color, or geographical location. The petitioner is a Korean, admittedly of the Mongol family. Whatever their precise shade of color may be defined to be, they are confessedly not white persons, either in fact or in accordance with common understanding, and they are about as far removed from Europe and the Mediterranean Sea as could well be imagined. If, then, the applicant is eligible to be admitted to citizenship in this country, it must be because of the provisions of the amendatory acts to which reference has been made.

So much of subdivision 7 of section 4 of the Act of June 29, 1906, as amended by the Act of May 9, 1918, as is material to this discussion, reads as follows:

'Any native-born Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who has enlisted or may hereafter enlist in the United States Navy or Marine Corps or the Naval Auxiliary Service, and who, after service of not less than three years, may be honorably discharged therefrom, or who may receive an ordinary discharge with recommendation for reenlistment; or any alien, or any Porto Rican not a citizen of the United States, of the age of twenty-one years and upward, who has enlisted or entered or may hereafter enlist in or enter the armies of the United States, either the regular or the volunteer forces, or the national army * * * may, on presentation of the required declaration of intention petition for naturalization without proof of the required five years' residence within the United States; * * * Any alien serving in the military or naval service of the United States during the time this country is engaged in the present war may file his petition for naturalization without making the preliminary declaration of intention and without proof of the required five years' residence within the United States; * * * and any alien, or any person owing permanent allegiance to the United States embraced within this subdivision, may file his petition for naturalization in the most convenient court without proof of residence within its jurisdiction, * * * provided he appears with his two witnesses before the appropriate representative of the Bureau of Naturalization and passes the preliminary examination hereby required before filing his petition for naturalization in the office of the clerk of the court.'

Section 2 of the Act of May 9, 1918 (section 4352aa) provides that:

'All acts or parts of acts inconsistent with or repugnant to the provisions of this act are hereby repealed; but nothing in this act shall repeal or in any way enlarge section twenty-one hundred and sixty-nine of the Revised Statutes, except as specified in the seventh subdivision of this act and under the limitation therein defined. * * * That as to all aliens who, prior to January first, nineteen hundred, served in the armies of the United States and were honorably discharged therefrom, section twenty-one hundred and sixty-six of the Revised Statutes of the United States shall be and remain in full force and effect, anything in this act to the contrary notwithstanding.'

The purpose of this act is well understood. It was to reward those aliens who had entered the military or naval service of the United States, as therein described, by admitting them to citizenship without many of the slow processes, formalities, and strictness of proofs which were rigidly provided and enforced under the law affecting naturalization as it existed then, and as it exists now. The amendments made were not to the title as a whole, but primarily to section 4 of the Act of June 29, 1906, 34 Stat. 596. This section deals, not with persons eligible to become naturalized, but with the procedure to be taken and the showing to be made by those elsewhere defined to be eligible. This in itself is significant in its bearing upon the specific interpretation we are required to make.

However, in the act of May 9, 1918, it was provided that any native-born Filipino of the age of 21 years, who has declared his intention to become a citizen of the United States, and any Porto Rican not a citizen of the United States of the age of 21 years and upward, who had enlisted, or might thereafter enlist, generally speaking, in the military or naval service of the United States, might become naturalized in the manner therein prescribed. It makes no other reference to the racial or geographical status of any person contemplated by the amendment. The act also provides that 'any alien' who might thus enlist or enter the military or naval service of the United States may be naturalized in like manner. Section 2 of the amending act, as we have seen, expressly provides that--

'Nothing in this act shall repeal or in any way enlarge section twenty-one hundred and sixty-nine of the Revised Statutes except as specified in the seventh subdivision of this act and under the limitation therein defined.'

The government contends that this limits the privilege to those races otherwise eligible to naturalization, while the petitioner claims that the privilege embraces all aliens of whatever race provided they have rendered the military or naval service specified.

The question, in some of its aspects, at least, and in those which I believe control the decision in this case, is not a new one. Section 2166 of the Revised Statutes of 1878 was a provision of the same general purpose and import. Its scope was unlimited in terms; but standing, as it did, in the same title with section 2169, it was ruled to be limited by the sweeping provisions of the latter section. In re Buntaro Kumagai (D.C.) 163 F. 922. A statute of like import was passed by Congress, and approved July 26, 1894 (28 Stat 124). A Japanese alien asked to be...