United States v. Ellis
| Decision Date | 03 March 1911 |
| Docket Number | 13,790. |
| Citation | 185 F. 546 |
| Parties | UNITED STATES v. ELLIS. |
| Court | U.S. District Court — Eastern District of Louisiana |
Charlton R. Beattie, U.S. Atty.
R. H Browne, curator ad hoc.
In this case the United States brings its bill against one Moses Ellis to cancel his naturalization, and alleges that it was obtained by fraud, in that he had no intention to become a permanent citizen at the time he applied to be naturalized.
The proceeding is by virtue of section 15 of the Act of June 29 1906 (Act June 29, 1906, c. 3592, 34 Stat. 601 (U.S. Comp St. Supp. 1909, p. 485)), which provides that, if a naturalized citizen shall establish a permanent residence in any foreign country within five years after obtaining his certificate of citizenship, proof of that fact shall be prima facie evidence of his lack of intention to become a permanent citizen of the United States at the time he applied for naturalization, and further provides for service of the absentee. An attorney at law was appointed curator ad hoc to represent him, and service of subpoena was made on the curator. He demurred to the service on the ground that the act requires service by publication, but his demurrer was overruled. The act provides, with regard to service, as follows * * * And if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for service of summons by publication, or upon absentees as provided by the laws of the State or place where such suit is brought.' (Italics mine).
Under the laws of Louisiana, no service by publication could be made in a case such as this, but interpreting the section so as to give it effect in all of the states, as Congress plainly intended, the words 'by publication' may be considered merely directory and the clause construed to read as follows: 'Such notice shall be given in the manner provided for service upon absentees,' etc. The laws of Louisiana provide for the appointment of an attorney at law as curator ad hoc to represent an absentee, and I consider service on him as in this case to be sufficient. The defendant has filed an answer through his curator, and sets up the defenses that his naturalization amounted to a contract between the United States and himself and by it he acquired vested rights; that said section 15 is void, as an ex post facto law, as it applies a severe penalty to him, to wit, expatriation. The facts as shown by the certificate of the American consul at Pretoria and the certificate of naturalization, both offered by the government and not...
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