United States v. Jorgenson

• Citation: 241 F. 412
• Parties: UNITED STATES v. JORGENSON.
• Decision Date: 02 December 1916
• Court: U.S. District Court — Western District of Michigan

241 F. 412

UNITED STATES v. JORGENSON.

United States District Court, W.D. Michigan, Northern Division.

December 2, 1916

Myron H. Walker, U.S. Dist. Atty., of Grand Rapids, Mich.

Miller Tracy & Eldredge, of Marquette, Mich., for respondent.

SESSIONS District Judge.

This is a proceeding brought by the United States against respondent under the provisions of section 15 of the Act of June 29 1906 (chapter 3592, 34 Stat. 601 (U.S. Comp. St. 1916, Sec 4374)), to cancel a certificate of citizenship issued to him on November 3, 1915, by the circuit court of Houghton county, Mich. The petition alleges, in substance, that such certificate of citizenship was 'illegally procured,' in that he had not been 'a resident of the United States for a period of at least five years continuously * * * immediately preceding the date of the filing of his petition' for admission to citizenship. The facts of the case are not much in dispute. Respondent was born in Norway. He left Norway in 1892 and spent eight years as a sailor, acquiring no new residence. He came to the United States in 1900 and worked at various places in this country erecting dredging machinery. In 1905 he resided in New York City, and there, in that year, declared his intention to become a citizen of the United States. In 1906, he was married at Orange in the state of New Jersey. His wife was of American parentage and a citizen of the United States until their marriage. After his marriage he resided with his wife at Orange, N.J., until July, 1909, when he entered the employ of the Isthmian Canal Commission in the Canal Zone in connection with the construction of the Panama Canal. He was employed by the Canal Commission from July, 1909, to October, 1912, and, during that time, was engaged in the erection and operation of dredging machinery. When he went to the Canal Zone in July, 1909, his wife did not accompany him, but remained at Orange for about six months, when she also went to the Canal Zone to live with him in a house furnished by his employer, presumably pursuant to his contract of employment. Before leaving Orange, he stored his household goods, and claims that he fully intended to return to his residence there. After the completion of his work in the Canal Zone, he did return and purchased a house in Orange. Ten months after his arrival in the Canal Zone, he was granted a vacation of six weeks and returned with his wife to Newark, N.J., took his household goods from storage, and opened and furnished a flat, where they lived for about four weeks. He then returned to his employment in the Canal Zone. His wife did not accompany him at that time, but continued to live in the flat for about three months, and then again stored their household furniture and went to the Canal Zone. While on his vacation in New Jersey, the respondent filed a petition for admission to citizenship. Later he was notified that his petition would be brought on for hearing, and applied for and obtained leave of absence and returned with his wife to Orange, N.J., in March, 1911. In the meantime, the date set for the hearing had passed, and his petition had been dismissed because of his failure to prosecute the same. Upon that occasion he remained in New Jersey four weeks at the home of his wife's parents. He then filed another petition for admission to citizenship and returned with his wife to the Canal Zone, where he remained until October, 1912, when he resigned from his employment with the Canal Commission. After his resignation, he immediately returned to Orange, N.J., and resided there until his removal to Lake Linden in Houghton county, Mich., March 24, 1914. His second petition for admission to citizenship filed in New Jersey was dismissed, without prejudice, upon his own application. In April, 1915, he made and filed a third petition in the circuit court for Houghton county. The hearing upon this petition was adjourned from time to time to enable him to procure the depositions of witnesses in New Jersey and in the Canal Zone. The hearing was finally had on the 3d day of November, 1915, when an order was made by the court admitting him to become a citizen of the United States, and a certificate of citizenship was issued to him accordingly. A naturalization officer of the United States was present at the hearing and objected to the making of the order and the issuance of the certificate. Respondent's petition, as originally filed in the circuit court of Houghton county, contained a recital that he had resided continuously in the United States since the 10th day of February, 1900, 'except from July 12, 1909, to October 8, 1912. ' After the hearing and on November 10, 1915, the court made an order that the petition be amended by striking out the clause above quoted.

Respondent claims to have resided continuously in the United States since February, 1900, and that, under the circumstances, the continuity of his residence in the United States was not broken by his absences therefrom during his employment in the Canal Zone. It appears beyond dispute that, during the entire time that he was in the Canal Zone, he claimed a residence, and intended to maintain his residence, in Orange, N.J. The government contends that, regardless of his intention, his absence in the Canal Zone for such a long time was fatal to his admission to citizenship.

This is an equitable proceeding (United States v. Ness, 230 F. 950, 145 C.C.A. 144; Luria v. United States, 231 U.S. 9, 27, 28, 34 Sup.Ct. 10, 58 L.Ed. 101; United States v. Salomon (D.C.) 231 F. 461; and Id., 231 F. 928, 146 C.C.A. 124), and hence mere form, unless jurisdictional, must yield to substance. Citizenship granted by a court of competent jurisdiction after full hearing should not be taken away unless, from the facts presented, it clearly appears that such citizenship was illegally procured and that the applicant therefor was not entitled thereto at the time his petition was filed. A court decree which accords with truth and justice ought not to be annulled, either because of formal irregularities in the proceedings leading up to its rendition, or because it was based upon an incorrect theory of law, or erroneous reasoning as to facts. If, at the time he filed his petition and at the time his application was granted, respondent, under the facts truthfully stated by him and his witnesses, was entitled to a certificate of citizenship, it would be unjust and inequitable to deprive him thereof merely because the court may have been mistaken, not in the result reached, but in some of its deductions derived from the facts presented. While the admission of an alien to citizenship is a privilege and not a right, and while Congress may prescribe the terms and impose the conditions upon which such privilege may be enjoyed, yet, when the terms and conditions so prescribed and imposed have been complied with, the privilege ripens into a right which cannot be denied. United States v. Shanahan (D.C.) 232 F. 169.

The courts are agreed that, in applying the...