United States v. Manzi

• Decision Date: 31 December 1926
• Docket Number: No. 2038.,2038.
• Citation: 16 F.2d 884
• Parties: UNITED STATES v. MANZI.
• Court: U.S. Court of Appeals — First Circuit

16 F.2d 884 (1926)

UNITED STATES v. MANZI.

No. 2038.

Circuit Court of Appeals, First Circuit.

December 31, 1926.

John S. Murdock, U. S. Atty., and Fred B. Perkins, Asst. U. S. Atty., both of Providence, R. I.

Michael J. Turano and De Pasquale & Turano, all of Providence, R. I., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

On October 15, 1913, Aniello Manzi, husband of the appellee, filed in the court below his declaration of intention to become a citizen. On December 19, 1914, he died without having filed a petition for naturalization. On October 4, 1924, his widow Amalia, having filed no declaration of intention in her own behalf, filed a petition for naturalization, and on February 3, 1925, was naturalized. On January 9, 1926, the United States attorney for the district of Rhode Island filed, under section 15 of the Naturalization Act of June 29, 1906, 34 Stat. 601 (Comp. St. § 4374), a petition for the cancellation of Amalia's certificate, on the ground that it was illegally procured. The appellee filed an answer, admitting all the allegations of fact, but denying the conclusions of law. The court below, without opinion, dismissed the petition. The government appealed, and has submitted the case on brief. No brief has been filed for the appellee, nor has the case been orally argued on either side. This is a most unsatisfactory record.

The appellee was naturalized under section 4, par. 6, of said act (Comp. St. § 4352), which reads:

"When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this act, be naturalized without making any declaration of intention."

The government's present contention is that this provision is to be regarded as subject to the time limit in the second paragraph of section 4, which reads as follows:

"Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own handwriting and duly verified, in which petition such applicant shall state his full name, his place of residence (by street and number, if possible), his occupation, and, if possible, the date and place of his birth."

As the appellee's petition was filed more than 7 years after her husband's declaration, it is argued that the petition for her naturalization was illegally granted.

This case is obviously an attempt to obtain judicial approval of paragraph 3, rule 5, of the Rules and Regulations effective May 15, 1924, issued by the department under the usual power granted by section 28 of the act (Comp. St. § 4383).

Paragraph 3 reads as follows:

"A petition for naturalization executed by the widow and minor children of a deceased declarant pursuant to the provisions of the sixth subdivision of section 4 of the Act of June 29, 1906, as amended, shall be made and filed not less than two nor more than seven years after the filing of the declaration of intention by the deceased husband and father."

The United States attorney urges the well-settled doctrine that contemporaneous construction of a statute by the department charged with the duty of administering it, is entitled to weight in interpreting the meaning of the statute. Malley, Collector, v. Walter Baker & Co., Lim'd (C. C. A.) 281 F. 41, 46; Baltzell v. Mitchell (C. C. A.) 3 F.(2d) 428, 430.

The trouble we find in applying this well-established doctrine to this case is that paragraph 3 of the regulation is not the contemporaneous construction by the department. The act was passed in 1906, and we find no attempt in the regulations to read the 7-year limitation into paragraph 6 of section 4, supra, until 1920. So far as we can ascertain, it first appeared in the Regulations of September 24, 1920, as a proviso in paragraphs (c) and (d) of rule 24, which deal with petitions of widows and children under paragraph 6 of section 4, supra.

There is nothing, therefore, before this court to indicate that, in the first 14 years of the construction of the act, this limitation upon the rights of the widows and children of deceased declarants was undertaken to be enforced by the department. Under such circumstances the regulation has little or no weight upon the question of the proper interpretation of the statute.

There are other difficulties in adopting the government's present position. As pointed out in Van Dyne on Naturalization, p. 262, under the old statute, R. S. § 2168, the widow and children of a deceased declarant were considered as citizens of the United States and entitled to all rights and privileges as such on taking the oaths prescribed by law. This was a broad and generous provision for the surviving family of a deceased declarant, apparently grounded on the principle that in all civilized countries widows and minor children should always be the object of special care by lawmakers. Obviously, the widow and minor children of a deceased prospective citizen — perhaps having property in the country of origin — might need the protection of American citizenship for very many important purposes. An American citizen going abroad is entitled to the protection of this government against unlawful molestation of person and property. Passports are in recent years...