United States v. Tod, 259.

• Decision Date: 10 March 1924
• Docket Number: 259.
• Citation: 297 F. 385
• Parties: UNITED STATES ex rel. PATTON v. TOD.
• Court: U.S. Court of Appeals — Second Circuit

297 F. 385

UNITED STATES ex rel. PATTON v. TOD.

No. 259.

United States Court of Appeals, Second Circuit.

March 10, 1924

[Copyrighted Material Omitted]

Gilbert & Gilbert, of New York City (A. S. Gilbert and Godfrey Cohen both of New York City, of counsel), for appellant.

William Hayward, U.S. Atty., of New York City (James C. Thomas, Asst U.S. Atty., of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

In view of the finding of the medical board that Pola Patton was an imbecile, she was mandatorily excludable, as will appear infra. On the facts, several unrelated questions have arisen and require consideration.

It is contended that, when the father became a naturalized American citizen, the child, by virtue thereof, also became an American citizen. Counsel for appellant contends that section 2172 of the United States Revised Statutes was not repealed by section 5 of the Act of March 2, 1907, while counsel for the United States urges that it was repealed.

In support of appellant's contention, it is urged that under R.S.U.S. Sec. 2172, only those minor children who were dwelling in the United States at the time that the parent was naturalized became citizens of the United States; hence that the 1907 act was supplementary or in addition to R.S.U.S. Sec. 2178, and provided for those cases where the minor child was still abroad at the time of the parent's naturalization, and therefore, as Pola Patton was 'dwelling' in the United States when her father was naturalized, she became an American citizen under R.S.U.S. Sec. 2172.

Counsel for the United States insists that section 5 of the Act of March 2, 1907, wholly repealed R.S.U.S. Sec. 2178; but if not, and if R.S.U.S. Sec. 2172, applies, then the child was not 'dwelling' in the United States at the time her father was naturalized. Judge Winslow below, in a carefully considered opinion, expressed the view:

'The provisions of the first clause of section 2172, in so far as they apply to the children of aliens born outside the United States, are superseded by the Act of March 2, 1907, Sec. 5, supra. If, however, the earlier statute were still applicable, the relator, to claim the status of citizen, must have been 'dwelling in the United States' at the time of her father's naturalization. There must, however, have been a legal landing.'

As we do not agree fully either with the contentions of the respective sides or with the view of the District Judge, we think the most satisfactory approach is to follow the history of the statutes; for, in our opinion, the former statute was not wholly repealed, and the two statutes may be so construed as to be consistent with principles of statutory construction and to carry out the legislative intent. We remark in passing that it may be that the District Judge, with his attention concentrated on the facts in this case, meant to express the views which we shall state and to confine his construction of section 2172 to the cases of 'children of aliens born outside of the United States,' who come here after the naturalization of the parent.

1. The first Naturalization Act was passed by the First Congress and became law on March 26, 1790. 1 Stat. 103, 104. That act was repealed by the Act of January 29, 1795, 1 Stat. 414, 415, which was somewhat more elaborate, particularly providing for the applicant's renunciation of foreign sovereignty or allegiance. The language of section 3 of the act, however, so far as here concerned, was substantially the same as that of the act of 1790, and read:

'Sec. 3. * * * That the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. * * * '

Next came the Act of April 14, 1802, which repealed the act of 1795 and provided for some further details, and in section 4 (Comp. St. Sec. 4367) dealt with the subject-matter referred to in section 3 of the act of 1795, supra. Section 4 became, with slight immaterial changes, section 2172 of the Revised Statutes of the United States, supra, and it will be understood that we are referring to the same statute, whether we speak of it as the act of 1802 or R.S.U.S. § 2172.

It will be noted that the order of the words in the act of 1802 is different from that in the act of 1795, and particularly in respect of the word 'dwelling,' and this accounts for the observation of Mr. Justice Washington, infra. The early cases as to the status of a minor child of a naturalized American citizen, where the child was born outside of the United States, came in connection with the determination of questions of inheritance or other property rights.

The first inclination might well be to construe the statute of 1802 as applying only to such minor children as were actually dwelling in the United States at the time of the naturalization of their parents. The Supreme Court, however, as early as 1809, held otherwise in Campbell v. Gordon, 6 Cranch, 176, 183, 3 L.Ed. 190. In that case, the object of the bill was to rescind a contract made between the appellant and Robert Gordon, the appellee, for the sale of a tract of land by the latter to the former, upon the ground of a defect of title. The land belonged to James Currie, a citizen of Virginia, who died seized thereof in fee, on April 23, 1807, intestate and without issue. James Currie had one brother of the whole blood, named William, who prior to October 14, 1795, was a subject of the king of Great Britain, but who emigrated to the United States and on the last-mentioned date was naturalized an American citizen. At that time William Currie had one daughter Janetta (after Mrs. Gordon), who was born in Scotland. She came to the United States in October, 1797 (after her father's naturalization), while an infant, during the life of her father, and thereafter continued to reside in Virginia. William Currie died prior to April 23, 1807.

It was urged by appellant that, under section 3 of the act of 1795, the words 'at the time of such naturalization' applied as well to the residence of the child as to her age, and that the child must be in the United States at the time of the naturalization of the parent. The appellee contended that it was immaterial where the child was, if she was under age at the time of her father's naturalization. Speaking for the court, Mr. Justice Washington said:

'Whatever difficulty might exist as to the construction of the third section of the Act of the 29th of January, 1795, in relation to this point, it is conceived that the rights of citizenship were clearly conferred upon the female appellee by the fourth section of the Act of the 14th of April, 1802. This act declares that the children of persons duly naturalized under any of the laws of the United States, being under the age of 21 years at the time of their parent's being so naturalized, shall, if dwelling in the United States, be considered as citizens of the United States. This is precisely the case of Mrs. Gordon. Her father was duly naturalized, at which time she was an infant; but she came to the United States before the year 1802, and was at the time when this law passed dwelling within the United States. It is therefore the unanimous opinion of the court that, at the time of the death of James Currie, Mrs. Gordon was entitled to all the right and privilege of a citizen. * * * '

Young v. Peck, 21 Wend. (N.Y.) 389, decided in 1839, went even further. The action was for ejectment, brought by the plaintiff, Mary Young, for the recovery of an undivided moiety of a house and lot whereof her father died seized in 1823. James Knox came to this country from Scotland in 1774, leaving the plaintiff there. He remained in this country from his first arrival until his death, and became a citizen of the United States prior to the year 1802. Plaintiff was born in 1769; was married in Scotland to George Young, probably previous to her coming of age. Her husband died about 1825, in 1830 she came to this country, and in 1834 commenced the ejectment action. The lower court had decided that plaintiff was an alien at the time of the descent cast, and consequently was not entitled to recover. The plaintiff sued out a writ of error, and the Supreme Court, in an opinion by Chief Justice Nelson, held that plaintiff was a citizen and reversed the judgment. Error was taken to the Court of Errors, and that court, by a divided court, in an opinion by Chancellor Walworth, affirmed the judgment of the Supreme Court. Peck v. Young, 26 Wend. (N.Y.) 613. The case was taken to the Supreme Court of the United States, but was dismissed without opinion, as the parties had reached a settlement. Peck v. Young, 1 How. 250, 11 L.Ed. 120. The case apparently invoked discussion and the courts were not clear as to the ground of decision. See Ludlam v. Ludlam (1860) 31 Barb. (N.Y.) 486-491, affirmed 26 N.Y. 356, 84 Ann.Dec. 193.

There were several cases where the question arose as to a minor child born outside the United States, but dwelling here when the parent was naturalized. In all these cases, the courts held that the minor child became an American citizen upon the naturalization of the parent. West v. West (1840) 8 Paige (N.Y.) 433; State v. Penney (1850) 10 Ark 621; O'Connor v. State (1860) 9 Fla. 215; North Noonday Mining Co. v. Orient Mining Co. (1880 C.C.), 6 Sawy. 299, 1 F. 522; State v. Andriano (1887) 92 Mo. 70, 76, 4 S.W. 263. But the question as to the American citizenship of a minor child born abroad, and...