United States v. Dolla

• Decision Date: 01 March 1910
• Docket Number: 2,007.
• Citation: United States v. Dolla, 177 F. 101 (5th Cir. 1910)
• Parties: UNITED STATES v. DOLLA.
• Court: U.S. Court of Appeals — Fifth Circuit

177 F. 101

UNITED STATES v. DOLLA.

No. 2,007.

United States Court of Appeals, Fifth Circuit.

March 1, 1910

Alexander Akerman, for the United States.

Robt. M. Hitch and Remer L. Denmark, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and FOSTER, District Judge.

PARDEE Circuit Judge.

The record shows that Abba Dolla presented his petition in due form for naturalization under the act of Congress providing for a uniform rule for the naturalization of aliens, approved June 29, 1906 (Act June 29, 1906, c. 3592, 34 Stat. 596 (U.S Comp. St. Supp. 1909, p. 477)), that upon the hearing of this petition and in opposition thereto the United States appeared through Alexander Ackerman, Esq., Assistant United States Attorney, and urged an objection upon the ground that the said Abba Dolla was a native of India, and was not of those classes of aliens who are permitted to be naturalized under the laws of the United States.

The court heard the petitioner and the evidence produced by him and 'being of opinion that the said applicant was a white person, within the meaning of the said naturalization laws and was entitled to become naturalized as a citizen of the United States,' made an order formally admitting said Abba Dolla as a citizen of the United States, to which ruling of the court the United States Attorney in behalf of the United States excepted and thereafter sued out this writ of error.

The bill of exception shows:

'Upon the said hearing, by the sworn testimony of the said Abba Dolla, and his said two witnesses, it was shown to the satisfaction of the court that the said Abba Dolla was in all respects qualified to become naturalized as a citizen of the United States, the only question at issue being as to whether or not he was a white person within the meaning of naturalization laws. It appeared that the said Abba Dolla was born and reared in Calcutta, India. His father and mother were natives of Afghanistan. Prior to the applicant's birth they removed to Calcutta from Kabul, the capital of Afghanistan. The applicant's complexion is dark, eyes dark, features regular and rather delicate, hair very black, wavy and very fine and soft. On being called on to pull up the sleeves of his coat and shirt, the skin of his arm where it had been protected from the sun and weather by his clothing was found to be several shades lighter than that of his face and hands, and was sufficiently transparent for the blue color of the veins to show very clearly. He was about medium or a little below medium in physical size, and his bones and limbs appeared to be rather small and delicate. Before determining that the applicant was entitled to naturalization the presiding judge closely scrutinized his appearance and himself propounded the questions relating to the various requirements of the naturalization statutes, giving the applicant a rigid and detailed examination. The applicant testified that he came to New York from Calcutta about June 15, 1894, on the steamship Gonconda, and that on the same boat a fellow countryman of his, named Abdul Hamid, came to this country, and that Abdul Hamid was granted naturalization papers in the United States District Court at New Orleans on March 20, 1908, the naturalization certificate of Abdul Hamid being produced and submitted to the presiding judge in confirmation of this statement. The applicant has been living in Savannah, Ga., about 12 years. He is a regular importer of silks, linens, and other goods from India, through the Savannah custom house, and acts as a kind of jobber or wholesaler in this line of business, other countrymen of his taking the goods and selling them at retail from house to house in the surrounding country as well as in the city of Savannah. The applicant seemed to be generally and very favorably known by quite a number of reputable people in Savannah, several of whom he offered to produce in court to testify as to his character, integrity, habits, etc., though the court did not require their testimony. Among those whom he offered to produce for this purpose was the deputy collector of the port at Savannah, certain merchants of the city, one of the attaches of the United States court and one of the leading white physicians of the city, Dr. E. R. Corson, who had attended him at the various times in the past several years and who had at one time performed an operation on him for appendicitis. Dr. Corson was present in the court at the hearing, and was ready to swear that in his judgment the applicant was of pure Caucasian blood. The applicant seemed to have no particular affiliations of social nature with any except those of his own nationality-- he and several of his countrymen living together in Savannah. His trade was among whites and blacks indifferently. The two witnesses to his application were colored men. He was shown, however, to be the owner of a cemetery lot in the 'white cemetery' at Savannah, which is owned and controlled by the city of Savannah, and which cemetery lots are sold by the city of Savannah to white persons only, and in which white persons only are buried, other cemeteries being provided for colored people.' The errors assigned are, (1) The court erred in admitting the said Abba Dolla as a citizen of the United States over the objection of the said United States. (2) The court erred in holding that under the evidence the said Abba Dolla was a white person within the meaning of the naturalization laws of the United States. (3) The court erred in overruling the objection of the United States to the said petition. (4) The court erred in not making an order, under the evidence in the case, refusing to admit the said Abba Dolla to citizenship.

The defendant in error denies our jurisdiction. The naturalization laws, while they provide 'the United States shall have the right to appear before any court exercising jurisdiction in naturalization proceedings for the purpose of cross-examining the petitioner and shall have the right to call witnesses to produce evidence and be heard in opposition to the granting of any petition in naturalization proceedings,' do not provide for, or apparently contemplate, any appeal, by writ of error or otherwise, to any revisory court, and therefore if this court has any jurisdiction on this writ of error, it must be found in the fifth and sixth sections of the Circuit Courts of Appeals Act, passed in 1891 (Act March 3, 1891, c. 517, 26 Stat. 827 828 (U.S. Comp. St. 1901, p. 549)), the fifth section of which provides for appeals or writs of error from the District and existing Circuit Courts to the Supreme Court in certain enumerated cases; and in section 6 provides that the Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Courts and existing Circuit Courts in all cases other than those...