United States v. Milder

• Decision Date: 21 October 1922
• Docket Number: 5742.
• Citation: 284 F. 571
• Parties: UNITED STATES v. MILDER.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 571

UNITED STATES v. MILDER.

No. 5742.

United States Court of Appeals, Eighth Circuit.

October 21, 1922

Edward W. Tobin, U.S. Naturalization Examiner (T. S. Allen, U.S Atty., of Lincoln, Neb., on the brief), for the United States.

Albert S. Ritchie, of Omaha, Neb., for appellee.

Before HOOK and STONE, Circuit Judges, and TRIEBER, District Judge.

STONE Circuit Judge.

This is an action, under section 15 of the Naturalization Act (34 Stat.L. 601 (Comp. St. Sec. 4374)), to cancel the decree and certificate of naturalization of Harry B. Milder, on the ground of fraudulent and illegal procurement. From a dismissal of the bill this appeal is brought.

The naturalization proceedings were in a state district court of Nebraska. Thereat, appeared a naturalization examiner who presented affidavits tending to show that the applicant was a person of bad moral character, within the statutory meaning, having been keeper of an assignation house and engaged in violations of the state law governing sale of intoxicants. The examiner desired to present oral evidence in support of this contention but was denied the right so to do, the court saying that he thought he understood the contention and did not care to hear further evidence along that line.

To the present bill, Milder answered with a general denial and a plea in bar based upon the adjudication in the state court. The trial court sustained the plea in bar, denying appellant the right to introduce evidence of bad character, and dismissed the bill.

The question here presented is whether or not the adjudication in the state court is final and secure from attack under section 15 of the Naturalization Act. Several points are presented in argument but we deem one of them decisive. Sections 11 (34 Stat. 599 (Comp. St. Sec. 4370)) and 15 (34 Stat. 601) provide the methods designed by Congress to secure compliance with the naturalization requirements set forth in that statute and to afford protection against fraudulent or illegal naturalization. Section 11 gives the United States the right to appear before any court of naturalization; to cross-examine petitioner and his witnesses and 'to call witnesses, produce evidence, and be heard in opposition to the granting of any petition in naturalization proceedings ' Section 15 gives the right to institute proceedings to cancel certificates of naturalization 'on the ground of fraud or on the ground that such certificate of citizenship was illegally procured.'

These methods are 'cumulative.' U.S. v. Ness, 245 U.S. 319, 327, 38 Sup.Ct. 118, 62 L.Ed. 319. The appearance and participation of the United States, under section 11, in the hearing upon the petition is in no sense a bar to a subsequent resort to the action authorized by section 15. But the latter action is in no sense an appeal from or review of the proceedings upon the petition. It is an independent action based upon...