United States v. Ness

• Decision Date: 17 October 1914
• Citation: 217 F. 169
• Parties: UNITED STATES v. NESS.
• Court: U.S. District Court — Northern District of Iowa

217 F. 169

UNITED STATES v. NESS.

United States District Court, N.D. Iowa, Central Division.

October 17, 1914

F. A O'Connor, U.S. Atty., of New Hampton, Iowa, and M. R Bevington, Chief Natrualization Examiner, of St. Louis Mo for the United States.

Kenyon Kelleher & O'Connor, of Ft. Dodge, Iowa, for defendant.

REED District Judge.

This is a suit in equity by the government under section 15 of the Naturalization Act of Congress approved June 29, 1906 (34 St.c. 3592, p. 597) to cancel and set aside a certificate of naturalization issued to the defendant by the district court of Iowa in and for Palo Alto county on May 21, 1912, upon the alleged grounds that it was procured from said court by the fraud of the defendant and illegally, because the petition for naturalization at the time it was presented in the state court, nor at any time prior to the hearing thereon, was not supported by a certificate of the Department of Commerce and Labor of the United States, as required by said Naturalization Act, that the defendant did not submit to a physical examination and pay the required head tax on entering the United States, and that the certificate issued to defendant is void. The defendant in answer to the bill alleges, in substance, that the Department of Commerce and Labor directed its chief naturalization examiner to appear in the state court at the time fixed for the hearing of the petition and object on its behalf to the granting of the petition (which he did) upon the grounds alleged in the bill for setting aside and canceling the certificate, which objection it is alleged was overruled by the state court, and upon hearing the evidence admitted the defendant to citizenship and granted to him a certificate thereof in due form; that such judgment or decree of the state is res adjudicata, and cannot be called in question in this proceeding.

The failure to submit to a physical examination and pay the required head tax is not urged in argument in behalf of the government, and is not therefore considered.

The facts are agreed upon, were fully discussed at the bar, and many authorities have been cited by counsel in support of their respective contentions. It would serve no useful purpose to review them, and it must suffice to say that upon a careful consideration of the facts and authorities submitted the conclusion is that the failure to attach the certificate of the Department of Commerce and Labor of the arrival of the defendant in the United States to the petition for naturalization, even...