United States v. Leles

• Decision Date: 01 November 1915
• Docket Number: 180.
• Citation: 227 F. 189
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. LELES.

227 F. 189

UNITED STATES v. LELES.

No. 180.

United States District Court, N.D. California.

November 1, 1915

John W Preston, U.S. Atty., of San Francisco, Cal.

Frank A. Duryea, of San Francisco, Cal., for defendant.

VAN FLEET, District Judge.

The United States attorney, having filed herein a petition or complaint, under section 15 of the Naturalization Act of 1906 (Act June 29, 1906, c. 3592, 34 Stat. p. 596 (Comp. St. 1913 Sec. 4374)), to cancel a certificate of naturalization issued to the defendant, John Leles, on the ground that it was illegally and fraudulently procured to be issued, the defendant has moved to dismiss on the ground that the complaint does not state facts sufficient to constitute a cause of action. The motion proceeds upon the theory that the proceeding is equitable in character, and that such motion rather than a demurrer, is the proper method to test the sufficiency of the pleading. As this theory is not challenged by the plaintiff, its correctness may, without deciding, be assumed, since the motion raises the same question as would arise under a general demurrer.

The main attack is directed to the sufficiency of the affidavit lodged with the United States attorney, which is attached to the complaint as an exhibit, it being treated by the defendant as an essential feature of the pleading and its sufficiency as jurisdictional; the objection being (1) that it does not state facts sufficient to warrant the bringing of the proceeding, and (2) that it is insufficient, because based upon information and belief, and not the personal knowledge of the affiant.

In the first place, I do not regard the affidavit as jurisdictional in any such extreme sense as that contended for, and am not prepared to say that it furnishes the only competent basis for bringing such an action. But, treating it as a feature of the pleading to which it is attached, I think it not open to the objections urged. Section 15 of the act, which alone refers to the affidavit, or indicates its purpose or function, provides:

'That 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.'

The sole purpose apparently of the affidavit is to furnish an authentic source or means through which the United States attorney of the district may receive information upon which he may rely, of a violation of the statute. If the disclosures of the affidavit are such as to show 'good cause'-- that is, facts which, if sustained by proof, would afford ground for revoking the grant of citizenship involved, either for fraud or illegality-- it is made his duty to proceed and institute proceedings to have the validity of the grant judicially investigated and determined. When it has accomplished this purpose of putting the wheels of justice in motion, the affidavit would seem to have fulfilled its office, and so far as anything appearing in the act to the contrary, becomes functionless. It is obviously not intended to serve as a pleading, since, in requiring a 'suit' to be brought, the statute contemplates the filing of a formal complaint. Not being a pleading, it need not state its contents with the exactitude of one, but, like any affidavit, the form of which is not prescribed, is sufficient if the substantive matter required be presented, however informally or inartificially stated. The affidavit here involved would seem to measure up to these requirements. After the preliminary recitals the material portions are these:

'The affiant further states that he is informed and believes that the said John Leles was not qualified to become a naturalized citizen of the United States, in that he was not a person of good moral character for the five years immediately preceding the date of his application for naturalization in the above referred to court.

'The affiant further states that he is informed and believes that the said John Leles procured naturalization in an illegal manner and in violation of section 9 of the act of June 29, 1906 (34 Stat.part 1, p. 596), in this respect, to wit, that the court ordered, adjudged, and decreed the said John Leles a citizen of the United States upon the testimony of witnesses who were not examined under oath in open court, before the court, and in the presence of the court, nor was their

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