United States v. Wursterbarth

• Decision Date: 13 May 1918
• Parties: UNITED STATES v WURSTERBARTH.
• Court: U.S. District Court — District of New Jersey

249 F. 908

UNITED STATES v WURSTERBARTH.

United States District Court, D. New Jersey.

May 13, 1918

Charles F. Lynch, U.S. Atty., of Newark, N.J., for the United States.

Carl Lentz, of Newark, N.J., for respondent.

HAIGHT District Judge.

This is a proceeding instituted by the United States attorney for this district under section 15 of the Naturalization Act of June 29, 1906 (34 Stat.L. 596, 601, c. 3592 [Comp.St.1916, § 4374]), to cancel a certificate of citizenship granted to Frederick W. Wursterbarth, the respondent, by the court of common pleas of the county of Passaic, in the state of New Jersey, on the ground that it was fraudulently and illegally procured. The certificate was issued on November 3, 1882; the respondent being a native of Germany and a subject of the German emperor. The fraud alleged is that the respondent declared under oath that he absolutely and entirely renounced and abjured all allegiance and fidelity to any foreign sovereignty, and particularly to the emperor of Germany whereas in fact he did not do so, but, on the contrary retained an allegiance to Germany and its ruler. The matter has come on for hearing on the issues raised by the petition of the district attorney (to which were attached affidavits supporting its allegations), and the answer of the respondent. Upon the hearing the government proved, in substance, the following facts, viz.:

Within a few days after the outbreak of the present war between the United States and the German Empire, the respondent was approached by two ladies interested in a local chapter of the American Red Cross, in an effort to induce him to contribute money to that organization, upon which appeal the respondent became angry, and replied in substance that he would not do so; that he would do nothing to injure the country in which he had been born, brought up, and educated. Subsequently, in the month of June following, another woman, who was likewise interested in the same chapter of the American Red Cross visited him, and asked him to become a member. He angrily refused to do so, stating that he would give no money to send soldiers to the country where he was born and educated, and, in reply to some arguments which the solicitor advanced, stated that she did not know what it meant to be born in a country, and then have men go over and fight against that country. In the month of November, 1917, the respondent was approached by two gentlemen, in an effort to induce him to subscribe to the fund which the Young Men's Christian Association was then raising for war work. At that time he stated that he would do nothing to help defeat Germany, and in response to a question as to whether he did not want America to win the war he replied that he did not; that he had relatives in Germany. He made the same rejoinder to the question as to whether he did not want the American soldiers in camps and cantonments to be well taken care of; and, in reply to a statement made to him that he was better off than most Americans, he replied that he only came to this country on a vacation or visit.

The respondent did not attempt to refute or explain any of that testimony. It thus appears, without contradiction, that the respondent, although a citizen of this country, on three separate occasions (several months having intervened between each), since the outbreak of the war with Germany, gave vent to expressions which clearly indicate that at this time he bears an allegiance to the country of his origin, superior to that which he recognizes to this country. While his present state of mind is, of course, not the main fact in issue, yet if, at the time the certificate of citizenship was granted to him he retained the same allegiance to Germany, as he now manifestly has, it is not contended, and, indeed, it would not seem to be debatable, that any other conclusion could be reached than that the certificate had been procured by fraud, because the provisions of the Naturalization Act, at the time the respondent's certificate was issued (section 2165 of the Revised Statutes), required that before he could be admitted to citizenship he should declare on oath that he would support the Constitution of the United States, and that he absolutely and entirely renounced and abjured all allegiance and fidelity to any foreign sovereignty.

The question, therefore, on which the decision of this case depends, is whether it may be legitimately inferred as a fact, from his present state of mind, coupled with the circumstances to be hereinafter referred to, that he was of the same mind at the time he took the oath of allegiance and renunciation. In that aspect the case is one of first impression, so far as I am informed or have been able to ascertain. It must be borne in mind that the respondent did not express any dissatisfaction with the aims and purposes of this country in the present war, or with the reasons which had induced Congress to declare war, but that he boldly took the position that he would do nothing to injure the country of his birth, and did...