United States v. Maney
Decision Date | 22 September 1927 |
Docket Number | No. 3778.,3778. |
Citation | 21 F.2d 28 |
Parties | UNITED STATES v. MANEY. |
Court | U.S. Court of Appeals — Seventh Circuit |
Fred J. Schlotfeldt, of Chicago, Ill., for the United States.
Bruno V. Bitker, of Milwaukee, Wis., for appellee.
Before ALSCHULER, EVAN A. EVANS, and PAGE, Circuit Judges.
This is an appeal from an order dismissing a petition, filed under section 15 of the Naturalization Act (Comp. St. § 4374) to cancel a certificate of citizenship issued to appellee. The question here is: Did the court have the power to permit appellee to supply, at a later date, a certificate of arrival not filed with the petition as required by section 4, paragraph second, of the Naturalization Act of June 29, 1906 (34 Stat. p. 596 Comp. St. § 4352)?
Aliens have no vested right to citizenship, and none at all to prosecute their desire to become citizens except as provided in the statute. U. S. v. Ginsberg, 243 U. S. 472, 37 S. Ct. 422, 61 L. Ed. 853. The contention of appellee, in substance, is that the required certificate need not be filed at the time and in the manner provided in section 4, but that it may be filed then, or at any other time, within the discretion of the court.
When the act of 1906 was planned, the Congress had the background of the experience of the nation and the courts under a naturalization law that was then more than 100 years old. There does not seem to be any exact rule by which it can be determined whether a statute is mandatory or merely directory. In French v. Edwards, 13 Wall. (80 U. S.) 506, 511 (20 L. Ed. 702), the Supreme Court, considering the question as to what statutes are directory, and what mandatory, said:
It would appear that those statutory provisions which pertain merely to the administration of the law, so as to regulate and dispatch the business in hand, are directory merely, but that those statutory provisions which are made for the protection of the rights of parties, which may be injured, if the provisions are not strictly pursued, must be regarded as mandatory. And it seems to follow necessarily, from what is said by the court, that even provisions which are usually considered directory become mandatory, if "accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated."
In U. S. v. Ginsberg, 243 U. S. 472, 473, 37 S. Ct. 422, 424 (61 L. Ed. 853), is disclosed a part of the background that confronted Congress when it undertook to fix a "uniform system and a code of procedure in naturalization matters," which it did when the law, of which the section in question is a part, was passed. Speaking of the new law, the court said:
This language seems to say that the form and contents of the alien's sworn petition to the court, and the manner of its preparation, filing, and presentation, shall be in exact accordance with the provisions of the act, and not otherwise, before there is any power in the court to act upon it. One of the seemingly strong reasons for the present act is, as stated by the court in the Ginsberg Case, that, because of the generality of provisions of the old act, many abuses had arisen under it, which it was desired to prevent in the future.
In U. S. v. Ness, 245 U. S. 319, 323, 38 S. Ct. 118, 120 (62 L. Ed. 321), the Supreme Court pointed out the important reasons for the provisions of the act requiring the filing of the certificate of arrival. Whether an alien applicant is one who must be excluded under the provisions of the statute because of his political beliefs, or whether he has been here the requisite time, or whether there is identity between him and the record which he claims is his own, are all matters of the utmost importance. The Supreme Court said in U. S. v. Ness, supra:
"Section 6 Comp. St. § 4354 prohibits courts from taking final action upon any petition until 90 days after such notice" (provided in section 5 Comp. St. § 4353)
While the court does not say that the failure to file the certificate at the time applicant's petition is filed is fatal, it does say that, the filing of the certificate of arrival "being a matter of substance, it is clear that no power is vested in the naturalization court to dispense with it." The opinion further points out:
The court distinctly recognized the importance of the regulation issued by the Secretary of Labor, pursuant to the act, saying: "The clerk of the court is advised that he `should not commence the execution of the petition until he had received the certificate of arrival.'" This interpretation by the Supreme Court seems clearly to indicate that the act should be followed literally by the courts. We see no good reason why it should not be strictly followed.
The provisions of section 4 of the act, while consisting of considerable detail, are quite clear and in no way complicated. By paragraph second thereof the alien is given the right:
etc. "At the time of filing his petition there shall be filed with the clerk of the court a certificate from the Department of Labor, if the petitioner arrives in the United States after the passage of this act, stating the date, place, and...
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