United States v. Reid, 7476.

• Decision Date: 15 October 1934
• Docket Number: No. 7476.,7476.
• Citation: 73 F.2d 153
• Parties: UNITED STATES v. REID.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 153 (1934)

UNITED STATES v. REID.

No. 7476.

Circuit Court of Appeals, Ninth Circuit.

October 15, 1934.

Carl C. Donaugh, U. S. Atty., and Hugh L. Biggs, Asst. U. S. Atty., both of Portland, Or., for the United States.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

Arla M. Reid, the appellee, a Canadian citizen, petitioned the District Court of the United States for the District of Oregon for naturalization under the Act of September 22, 1922 (42 Stat. 1021), as amended July 3, 1930 (46 Stat. 854 8 USCA § 369), which authorizes naturalization of alien women who have lost their American citizenship by marriage to an alien. The government opposed her petition for naturalization upon the ground that she was already a Canadian citizen at the time of her marriage and consequently did not lose her American citizenship by marriage and that the law invoked by petitioner is not applicable. The court overruled the objections of the government and admitted the petitioner to citizenship. The government appeals.

The petitioner was born in Newton, Iowa, on March 31, 1901. She removed to Canada with her parents two or three years later and resided there until January 23, 1933, when she entered the United States at Blaine, Wash., solely for a visit and not for permanent residence. Her father was naturalized in Canada June 27, 1907, while the petitioner was residing with him in Canada. As the petitioner was a citizen of the United States by birth, the question at issue resolves itself into that of whether or not she became a citizen of Canada by reason of her father's naturalization. The law of Canada in force at the time of her father's naturalization expressly so provided, as follows:

"If the father, or the mother, being a widow, has obtained a certificate of naturalization within Canada, every child of such father or mother who, during infancy, has become resident with such father or mother within Canada, shall, within Canada, be deemed to be a naturalized British subject." (Section 26, c. 113, Revised Statutes of Canada, 1886.)

The treaty of September 16, 1870, then in force between the United States and Great Britain (16 U. S. Stat. 775) provided that American citizens naturalized according to law in the British dominions should be held by the United States to be British subjects. We quote:

"Article I. Citizens of the United States of America who have become, or shall become, and are naturalized according to law within the British dominions as British subjects, shall, subject to the provisions of Article II, be held by the United States to be in all respects and for all purposes British subjects, and shall be treated as such by the United States.

"Reciprocally, British subjects who have become, or shall become, and are naturalized according to law within the United States of America as citizens thereof, shall, subject to the provisions of Article II, be held by Great Britain to be in all respects and for all purposes citizens of the United States, and shall be treated as such by Great Britain. * * *

"Article III. If any such citizen of the United States as aforesaid, naturalized within the dominions of her Britannic Majesty, should renew his residence in the United States, the United States government may, on his own application and on such conditions as that government may think fit to impose, readmit him to the character and privileges of a citizen of the United States, and Great Britain shall not, in that case, claim him as a British subject on account of his former naturalization."

Article 2 of the treaty deals with the right of naturalized citizens to renounce their new allegiance within two years after the ratification of the treaty (1872) and has no application here.

For the courts of the United States to treat the petitioner as an American citizen instead of a British subject after the naturalization of her father in 1907, would be to expressly violate the terms of the treaty of 1870 with Great Britain, which required her to be treated by the United States "in all respects and for all purposes as a British subject" from and after that date.

The treaty is a law of the United States entitled to be enforced in the courts of the United States. Article 6, cl. 2, of the Constitution provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

"A treaty is not only a law, but also a contract between two nations; and, under familiar rules, it must, if possible, be so construed as to give full force and effect to all its parts." Goetze v. U. S. (C. C.) 103 F. 72, 73, reversed 182 U. S. 221, 21 S. Ct. 742, 45 L. Ed. 1065.

It is suggested that the treaty, in so far as it takes away the citizenship of a minor child without her consent, is violative of the Constitution of the United States. It is doubtful if courts have power to declare the plain terms of a treaty void and unenforceable, thus compelling the nation to violate its pledged word, and thus furnishing a causus belli to the other contracting power. As stated by the Supreme Court, speaking through Justice Holmes, in Missouri v. Holland, 252 U. S. 416, 432, 40 S. Ct. 382, 383, 64 L. Ed. 641, 11 A. L. R. 984:

"It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. * * *

"Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but...