United States v. Ness

• Decision Date: 16 February 1916
• Docket Number: 4408.
• Citation: 230 F. 950
• Parties: UNITED STATES v. NESS.
• Court: U.S. Court of Appeals — Eighth Circuit

230 F. 950

UNITED STATES v. NESS.

No. 4408.

United States Court of Appeals, Eighth Circuit.

February 16, 1916

M. R Bevington, of St. Louis, Mo. (F. A. O'Connor, U.S. Atty of New Hampton, Iowa, on the brief), for the United States.

D. M Kelleher and B. J. Price, both of Ft. Dodge, Iowa, for appellee.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

Is a certificate of citizenship issued by a court after notice evidence, and hearing, to an alien proved to be entitled in every other respect to receive it, 'illegally procured' because he failed to attach to his petition for naturalization a certificate from the Department of Commerce and Labor stating the date, place, and manner of his arrival in the United States? This is the only question it is necessary to decide in order to dispose of this case, although many others are discussed in the briefs of counsel. The question arises in this way: Section 4 of the Act of June 29, 1906, 34 Stat. 596, 597, U.S. Comp. Stat. 1913, Sec. 4352, provides that an alien may be admitted to become a citizen of the United States in the following manner, and not otherwise, and then prescribes many things that he shall do, among them that he shall file a petition in writing signed by him in his own handwriting and duly verified, in which petition he shall state his full name, his place of residence, his occupation, if possible, the date and place of his birth, the place from which he emigrated, the date and place of his arrival in the United States, and, if he entered through a port, the name of the vessel on which he arrived, and more than a dozen other facts, and that at the time of filing his petition there shall be filed with the clerk of the court a certificate from the Department of Commerce and Labor 'stating the date, place, and manner of his arrival in the United States, * * * which certificate * * * shall be attached to and made a part of said petition. ' Section 15 of the same act imposes upon the United States attorney for the district in which the naturalized citizen resides the duty, upon good cause shown, to institute proceedings to set aside and cancel any certificate of citizenship obtained by him 'on the ground of fraud or on the ground that such certificate of citizenship was illegally procured.'

Under this section the United States brought this suit in equity and alleged in its complaint that on May 21, 1912, the district court of Palo Alto county, Iowa, rendered a decree admitting Ness to citizenship and issued to him a certificate of his admission, that the certificate was procured by fraud, and that it was illegally procured in that the certificate of arrival by the Department of Commerce and Labor was not attached to the petition. In his answer to the complaint Ness denied the alleged fraud, admitted that the certificate of arrival was not filed with or attached to the petition, and alleged that the United States appeared and litigated the issue of the sufficiency of his petition and his right to admission to citizenship notwithstanding his failure to attach the certificate of entry, and the court of Palo Alto county, after a hearing, adjudged both questions in his favor. At the hearing in the court below, the parties agreed that prior to the hearing on the petition for the naturalization of Ness in the district court of Palo Alto county, M. R. Bevington, Chief Naturalization Examiner of the Department of Commerce and Labor, for and on behalf of that department, and at its direction, filed a motion in which he stated that the petition should not be granted because it was not supported by a certificate of arrival, and cited authorities which he contended supported his position, and requested a dismissal of the petition, that the Iowa court considered that motion and the authorities quoted at the time the petition came on for hearing, and overruled it, that at that hearing Ness testified that he emigrated from Norway, arriving at Newcastle in Canada about June 11, 1906, that he did not know that the laws of the United States required him to submit to a medical examination, pay an alien head tax, or be registered on entering this country, that he took passage on the Grand Trunk Railway, arrived in Buffalo, where he first entered the United States, on August 21, 1906, remained on the train, passed through Buffalo into Canada and again entered the United States through some port in Michigan, that he saw no person who was or purported to be an emigration commissioner until after he filed his petition for naturalization in March, 1912, that before it was heard he was advised that it was invalid because it had no certificate of arrival attached, and he made an effort to procure such a certificate and was advised that it could not be furnished to him for the reason that there was no record of his entry into the United States. No evidence was presented at the hearing below of any fraud, misrepresentation, or deceit in the course of the proceedings in the Iowa court. There was no evidence that the proof before that court was not competent and ample to warrant its judgment, unless the absence from the petition of the certificate of arrival was fatal to that judgment, and the court below held, as did the Iowa court, that it was not so and rendered a decree of dismissal of the complaint of the United States.

Counsel for the United States contend that the decision of the court below was erroneous and should be reversed (1) because the absence of the certificate of arrival deprived the district court of Iowa of all jurisdiction of the suit of Ness for admission to citizenship and (2) because the absence of this certificate of arrival caused the certificate of citizenship to be 'illegally procured.' The test of jurisdiction is not right decision, but the right to enter upon the inquiry and make some decision. The Iowa court had complete jurisdiction of the person of Ness when he filed his petition. Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the particular facts constitute a good cause of action or ground for relief, but it includes every issue within the scope of the general power vested in the court by the law of its organization to deal with the abstract question. It is not limited to making correct decisions. It empowers the court to determine every issue of law and of fact within the scope of its authority according to its own view of the law and the evidence, whether its decision is right or wrong. Foltz v. St. Louis & S.F. Ry. Co., 60 F. 316, 318, 8 C.C.A. 635; Insley v. United States, 150 U.S. 512, 14 Sup.Ct. 158, 37 L.Ed. 1163; Cornett v. Williams, 20 Wall. 226, 22 L.Ed. 254; Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 Sup.Ct. 217, 31 L.Ed. 202; In re Sawyer, 124 U.S. 200, 221, 8 Sup.Ct. 482, 31 L.Ed. 402; Skillern v. May's Ex'rs, 6 Cranch, 267, 3 L.Ed. 220; McCormick v. Sullivant, 10 Wheat. 192, 6 L.Ed. 300; Hunt v. Hunt, 72 N.Y. 217, 28 Am.Rep. 129; Colton v. Beardsley, 38 Barb. (N.Y.) 30, 52; Otis v. Rio Grande, 1 Woods, 279, Fed. Cas. No. 10,613; Hamilton v. Railroad Co., 1 Md.Ch. 107; Evans v. Haefner, 29 Mo. 141, 147; State v. Weatherby, 45 Mo. 17; Rosenheim v. Hartsock, 90 Mo. 357, 365, 2 S.W. 473; State v. Southern Ry. Co., 100 Mo. 59, 13 S.W. 398; Hope v. Blair, 105 Mo. 85, 93, 16 S.W. 595, 24 Am.St.Rep. 366; Musick v. Railway Co., 114 Mo. 309, 315, 21 S.W. 491; King v. McAndrews, 111 F. 860, 863, 864, 50 C.C.A. 29.

The Iowa court was a court of general jurisdiction vested with plenary judicial power to determine all the issues in the proceedings of which it was given jurisdiction, including the questions relating to the lawfulness, sufficiency, form, and propriety of pleadings and procedure in such proceeding. Constitution of Iowa, art. 5, Sec. 6; Code of Iowa 1897, Sec 3600. Upon this court of general jurisdiction the Congress of the United States, by section 3 of the act of June 29, 1906, conferred full judicial power 'to naturalize aliens as citizens of the United States,' not on condition that the certificate of the Department of Commerce and Labor of his arrival should be filed with and attached to the petition of the alien, but generally and without any such narrow and technical condition. When therefore the applicant, Ness, filed his petition in that court to be admitted as a citizen of the United States, the judicial power was conferred and the duty was imposed upon the Iowa court to hear and decide, not only whether or not his petition and his procedure were sufficient, not only whether or not the absence of the certificate of entry was excused by the proved fact that none was ever issued because he...