United States v. Plaistow

• Decision Date: 02 August 1910
• Citation: United States v. Plaistow, 189 F. 1006 (W.D. N.Y. 1910)
• Parties: UNITED STATES v. PLAISTOW.
• Court: U.S. District Court — Western District of New York

189 F. 1006

UNITED STATES v. PLAISTOW.

United States District Court, W.D. New York.

August 2, 1910

John Lord O'Brian, U.S. Atty.

J. L Hurlbert, for defendant.

HAZEL District Judge.

The facts in this case are not in dispute and only questions of law are in controversy. The government has filed its bill of complaint under section 15 of the naturalization act of June 29, 1906 (36 Stat. 601, c. 3592 (U.S. Comp. St. Supp. 1909 p. 485)), for decree canceling the certificate of citizenship of the defendant, Thomas Plaistow, who was born in England and who, on June 23, 1903, enlisted in the United States Marine Corps, and subsequently, on July 2, 1906, at Mare Island Navy Yard, received his honorable discharge. During the period of his service, which continued for three years and eleven days, he was on duty in the Philippine Islands, in China, and in Japan, and his discharge was issued because of physical disability.

In the year 1909, he applied to the Supreme Court of the state of New York, in this judicial district, for citizenship, without having previously declared his intention to become a citizen. On the hearing at the regular term of court he offered in evidence his honorable discharge from the United States Marine Corps, asserting his right to citizenship upon giving evidence of his good moral character and without having previously obtained 'first papers.' The government objected to the issuance of an order of naturalization to him, on the ground that he had not served 'one enlistment in the United States Marine Corps,' and therefore he was not entitled to citizenship without first declaring his intention to become a citizen. Act July 26, 1894, c. 165, 28 Stat. 124 (U.S. Comp. St. 1901, p. 1332), provides as follows 'Any alien of the age of twenty-one years and upwards who has enlisted or may enlist in the United States Navy or Marine Corps, and has served or may hereafter serve five consecutive years in the United States Navy or one enlistment in the United States Marine Corps, and has been or may hereafter be honorably discharged, shall be admitted to become a citizen of the United States upon his petition, without any previous declaration of his intention to become such; and the court admitting such alien shall, in addition to proof of good moral character, be satisfied by competent proof of such person's service in and honorable discharge from the United States Navy or Marine Corps.'

The court overruled the objection of the government, holding as a matter of law that he had served one enlistment in the Marine Corps, and a certificate of naturalization was issued to him. The defendant here contends that this court is without power to cancel the certificate of naturalization granted by the state court, and, if an error of judgment or of law was committed by the court admitting him to citizenship, the remedy was by appeal or review, and not by action in equity for annulment or cancellation of the certificate of naturalization. The question submitted is important, and a conclusion has been reached adverse to the contention of the defendant, though not entirely without difficulty or doubt.

At the time the act of 1894 was passed the term of enlistment in the Marine Corps was five years, but later Naval Appropriation Act March 3, 1901, c. 852, 31 Stat. 1132 (U.S. Comp. St. 1901, p. 1095), enacted:

'That hereafter the enlistment into the Marine Corps shall be for a period of not less than four years.'

Whether such act was drawn to the attention of the state court for interpretation does not appear. Whatever may be the commonly accepted or technical definition of the term 'enlistment,' certainly the statute makes it clear that the contract of the defendant to voluntarily serve the government in the Marine Corps was for a definite and positive term of four years. His right to naturalization without any previous declaration of his intention to become a citizen depends upon the interpretation of both provisions. His actual service of one enlistment of four years was a jurisdictional fact, and in my opinion he could not be legally naturalized without strict compliance with the conditions imposed by Congress. As said in United States v. Spohrer (C.C.) 175 F. 440:

'He may accept the offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be enforced. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist, and if they do not he takes nothing by his paper grant.'

On reading the act of July 26, 1894, it will be noticed that aliens enlisting in the navy and applying for citizenship were required to show that they had served an enlistment of five consecutive years, where they had not previously declared their intention to become citizens, and Congress undoubtedly made no distinction between enlistments in the Navy and in the Marine Corps; but its subsequent action of lessening the term of enlistment in the Marine Corps to four years operates to enable such aliens to become naturalized at the end of their enlistment and before the expiration of five years.

Certainly it did not intend that an alien who received an honorable discharge within the four-year period should be entitled to naturalization without having...