United States v. Kamm

• Decision Date: 03 January 1918
• Citation: 247 F. 968
• Parties: UNITED STATES v. KAMM. SAME v. GRAHL. SAME v. THOMAS.
• Court: U.S. District Court — Eastern District of Wisconsin

247 F. 968

UNITED STATES v. KAMM. SAME v. GRAHL. SAME v. THOMAS.

United States District Court, E.D. Wisconsin.

January 3, 1918

H. A Sawyer, U.S. Atty., of Milwaukee, Wis.

John F Kluwin, of Oshkosh, Wis., W. W. Hughes, of Fond du Lac, Wis and C. E. Armin, of Waukesha, Wis., for defendants.

GEIGER District Judge.

These three cases were argued at the same time, and by formal though not written, stipulation of counsel in open court, are to be decided as involving uncontroverted facts presenting identity of legal questions.

The defendants, on and prior to April 6, 1917, were subjects of the Imperial German government. They resided in different judicial circuits of the state of Wisconsin, and prior to the date mentioned each had filed in the circuit court of the county of his residence a petition seeking naturalization as a citizen of the United States. The good character, the antecedent period of residence or domicile, and all other qualifications for citizenship under the laws of the United States, except as next herein noted, is conceded to each defendant. The petitions for naturalization were called for hearing and determination by the respective circuit courts after they had been pending the requisite 90 days, but after the date of the declaration of hostilities passed by Congress on April 6, 1917; and in each case the representative of the United States Naturalization Bureau appeared at the time and place of hearing, and objected to the reception of proofs or the determination thereof, solely on the ground that naturalization was barred by the provisions of section 2171 of the Statutes of the United States. The objection and protest was, in each matter, overruled, and certificates of naturalization were granted.

In due time the government filed in this court the petitions or complaints in these several cases, seeking to annul and vacate such certificates of naturalization; and the question is whether, upon the facts thus disclosed, the government is entitled to that relief.

Section 15 of the Naturalization Act reads:

'Sec. 15. This it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. * * * ' (Balance of paragraph provides for notice in proceedings based upon section.)

The parties have agreed that the cases be disposed of regardless of the manner in which the ultimate questions might be raised upon pleadings or proofs-- that is to say, the facts being admitted, the cases are before the court as upon an agreed statement, permitting all questions of law, whether pertaining to jurisdiction or to the merits, to be raised.

The questions in the cases are:

What is the proper interpretation of section 2171, which reads as follows:

'Sec. 2171. No alien who is a native citizen or subject, or a denizen of any country, state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States; but persons resident within the United States, or the territories thereof, on the 18th day of June, in the year 1812, who had, before that time, made a declaration according to law of their intention to become citizens of the United States, or who were on that day entitled to become citizens without making such declaration, may be admitted to become citizens thereof, notwithstanding they were alien enemies at the time and in the manner prescribed by the laws heretofore passed on that subject; nor shall anything herein contained be taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien.'

The question upon this section has arisen in both federal and state courts since the beginning of the present hostilities between the United States and Germany. It was under consideration by this court and the views entertained are found in the memorandum opinion published in 242 F. 971. The conclusion there expressed is adhered to, and any further expression to support what is there said is prompted by the wording of section 15 above quoted. That section gives the United States a right of action to annul certificates which have been 'illegally procured'; and this presents the second question raised and ably argued in the present proceedings, viz. whether, if this court has properly interpreted section 2171, the certificates issued to the herein defendants, have been 'illegally procured.'

It was suggested (242 F. 971) that the language of the section should in any event receive an interpretation conforming in the highest degree with the policy plainly enunciated; that the proviso passed in 1813 to reach a situation growing out of the War of 1812, supported the view that it was intended to place an absolute prohibition upon the power of any court to naturalize subjects of an enemy country at the time when the United States are at war with that country; that the phraseology of the section, 'at the time of his application,' was adopted as naturally consequent upon the then routine of procedure; and it may now be noted that the last clause of the proviso indicates the congressional view that prior to 'actual naturalization' no foreign subject acquired any status other than that of an alien, or an enemy alien, if a subject of a country with whom we are at war. That this was the then dominant view is further illustrated in section 4067 of the Revised Statutes of the United States (passed in 1798), defining the executive power over alien enemy subjects resident in this country. It is declared to be all-embracing over subjects of the enemy domiciled here, and 'not actually naturalized.' That the executive of the United States conceives this statute to be the present definition of powers is evidenced by exercise of such powers from day to day ever since April 9, 1917, when the proclamation dealing with enemy subjects during the present war was promulgated.

It was therefore suggested that the executive was left just as free to exercise the powers of removal, internment, and exaction of security of or from those who had filed a petition for naturalization as from those who had not; and, if this be true, we can appreciate the consequences ensuing an interpretation of section 2171, upon which courts may naturalize those who had been so fortunate as to file their petitions before the outbreak of hostilities. That is to say, supposing, after the outbreak of hostilities, while petitions were pending, but prior to hearing, the executive, in the exercise of undoubted power, had taken steps permitted by section 4067, had either interned or exacted bail, or was about to remove from the country aliens, subjects of the enemy country, could the court, by proceeding with the naturalization of the petitioners and conferring citizenship, frustrate the executive will? I do not believe that any one would give to this question an affirmative answer. These considerations are proper in estimating the policy with which Congress was dealing and testify to an apparently clear conception that nothing short of actual naturalization changes either the alien, or the alien enemy status. They support the suggestion that, when the sovereign is seeking to ascertain (during the existence of war or at any time) the legal status or relation of legal allegiance of an individual, there is-- between citizenship and alienage-- no such intermediate thing as a quasi citizenship, quasi alienage, or a quasi enemy alienage. The individual alien enemy, because of his actual friendliness and loyalty to the sovereign of his domicile, may be dealt with, by the executive, upon considerations leaving him practically in as favorable a situation as a citizen; but in legal contemplation, and in respect of exacting consideration upon the basis of legal right, he is in no better position to insist upon it at the hands of the courts than is a less friendly or an actually hostile individual enemy subject.

Conceding, therefore, that when, in 1906, there was added, as a procedural requirement, the filing of a written petition, and thereby the meaning of 'application,' in section 2171, became equivocal or ambiguous, it is not sensible to ascribe to Congress an intention to classify alien enemy subjects into those who have and those who have not 'petitioned' for naturalization at the commencement of war-- a classification which, with equal reason, may be imposed upon section 4067, thereby limiting executive power over the former class. Both statutes proceed upon the view that the legally hostile status of the individual is the sufficient warrant for granting to the executive the one, and forbidding to the courts the exercise of the other, power, and the plain intent must have been that the power and the prohibition alike become effective, without reservation, at the instant such status attached to the individual. I am satisfied to adhere to the view (242 F. 971), that these various considerations forbid interpreting section 2171 as amended in the particulars contended.

This brings us to the second question, namely, whether certificates granted, as in the present cases, are 'illegally procured' within the meaning of section 15 of the Naturalization Act. The question has been much discussed, and counsel have furnished to the court probably all of the...