UNITED STATES v. MANEY, 21 F.2d 28

PAGE, Circuit Judge. This is an appeal from an order dismissing a petition, filed under

section 15 of the Naturalization Act (Comp. St. § 4374) to cancel a certificate of citizenship issued to appellee. The question here is: Did the court have the power to permit appellee to supply, at a later date, a certificate of arrival not filed with the petition as required by

section 4, paragraph second, of the Naturalization Act of June 29, 1906 (34 Stat. p. 596 [Comp. St. § 4352]) ? Aliens have no vested right to citizenship, and none at all to prosecute their desire to become citizens except as provided in the statute. U. S. v. Ginsberg, 243 U. S. 472, 37 S. Ct. 422, 61 L. Ed. 853. The contention of appellee, in substance, is that the required certificate need not be filed at the time and in the manner provided in

section 4, but that it may be filed then, or at any other time, within the discretion of the court. When the act of 1906 was planned, the Congress had the background of the experience of the nation and the courts under a naturalization law that was then more than 100 years old. There does not seem to be any exact rule by which it can be determined whether a statute is mandatory or merely directory. In French v. Edwards, 13 Wall. (80 U. S.) 506, 511 (20 L.

Ed. 702), the Supreme Court, considering the question as to what statutes are directory, and what mandatory, said: “There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected.

Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid.

The power of the officer in all such eases is limited by the manner and conditions prescribed for its exercise.” It would appear that those statutory provisions which pertain merely to the adminisstration of the law, so as to regulate and dispatch the business in hand, are directory merely, but that those statutory provisions which are made for the protection of the rights of parties, which may be injured, if the provisions are not strictly pursued, must be regarded as mandatory.

And it seems to follow necessarily, from what is said by the court, that even provisions which are usually considered directory become mandatory, if “accompanied by negative words impprting that the acts required shall not be done in any other manner or time than that designated.” In U. S. v. Ginsberg, 243 U. S. 472, 473, 37 S. Ct. 422, 424 (61 L. Ed. 853), is disclosed a part of the background that confronted Congress when it undertook to fix a “uniform system and a code of procedure in naturalization matters,” which it did when the law, of which the

section in question is a part, was passed. Speaking of the new law, the court said: “This specifies with circumstantiality the manner ‘and not otherwise’ in which an alien may be admitted to become a citizen of the United States; what his preliminary declaration shall be; form and contents of his sworn petition to the court, and witnesses by which it must be verified; form of oath to bo taken in open court; necessary proof concerning residence, character, etc.

The clerk is required to post notice of the petition, with details concerning applicant, when final hearing will take place, names of witnesses by which alleged facts are to be established, etc.” This language seems to say that the form and contents of the alien’s sworn petition to the court, and the manner of its preparation, filing, and presentation, shall be in exact accordance with the provisions of the act, and not otherwise, before there is any power in the court to act upon it.

One of the seemingly strong reasons for the present act is, as stated by the court in the Ginsberg Case, that, because of the generality of provisions of the old act, many abuses had arisen under it, which it was desired to prevent in the future. In U. S. v. Ness, 245 U. S. 319, 323, 38 S. Ct. 118, 120 (62 L. Ed. 32.1), the Supreme Court pointed out the important reasons for the provisions of the act requiring the filing of the certificate of arrival.

Whether an alien applicant is one who must be excluded under the provisions of the statute because of his political beliefs, or whether he has been here the requisite time, or whether there is identity between him and the record which he claims is his own, are all matters of the utmost importance. The Supreme Court said in U. S. v. Ness, supra: - “Section 6 [Comp. St. § 4354] prohibits courts from taking final action upon any petition until 90 days after such notice” (pro'vided in

section 5 [Comp. St. § 4353]) “has been given.

That period is provided, so that the examiners of the Bureau of Naturaliza^ tion and others may have opportunity for adequately investigating whether reasons exist for denial of the petition.” While the court does not say that the failure to file the certificate at the time applicant’s petition is filed is fatal, it does say that, the filing of the certificate of arrival “being a matter of substance, it is dear that no power is vested in the naturalization court to dispense with it.” The opinion further points out: “Experience and investigation had taught that the widespread frauds in naturalization, which led to the passage of the Act of June 29, 1906, were, in large measure, due to the great diversities in local practice, the careleSsness of those charged with duties in this connection, and the prevalence of perjured testimony in cases of this character.

A 'uniform rule of naturalization/ embodied in a simple and comprehensive code, under federal supervision, was believed to be the only effective remedy for then existing abuses.

And, in view of the large number of courts to which naturalization of aliens was intrusted and the multitude of applicants, uniformity and strict enforcement of the law could not be attained, unless the code prescribed also the exact character of proof to be adduced.” The court distinctly recognized the importance of the regulation issued by the Secretary of Labor, pursuant to the -act, saying: “The clerk of the court is advised that he 'should not commence the execution of the petition until he had received the certificate of arrival.’ ” This

interpretation by the Supreme Court seems clearly to indicate that the act should be followed literally by the courts. We see no good reason why it should not be strictly followed. The provisions of

section 4 of the act, while consisting of considerable detail, are quite clear and in no way complicated.

By paragraph second thereof the alien is given the right-: “Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own handwriting and duly verified, in which petition such applicant shall state his full name, his place of residence, * * * his occupation, and, if possible, the date and place of his birth; the place from which he emigrated, and 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; the time when and the place and name of the court where he declared his intention to become a citizen of the United States. * * * The petition shall also be verified by the affidavits of at least two credible witnesses, who are citizens,” etc. “At the time of filing his petition there shall be filed with the clerk of the court a certificate from the Department of Labor, if the petitioner arrives in the United States after the passage of this act, stating the date, place, and manner of his arrival in the United States, and the declaration of intention of siich petitioner, which certificate and declaration shall be attached to and made a part of said petition.” In addition, the government has provided blank petitions for use by applicants.

Whether such a blank was used in this case does not appear, but, if so, the applicant was challenged with the fact that a certificate should be furnished, by the following language in his affidavit: “Attached hereto and made a part of this petition are my declaration of intention to become a citizen of the United States and the certificate from the Department of Labor required by law.” Unless the applicant waits, before filing his petition, practically the whole five years allowed him in which to file it, no consequence greater than a little delay and a small expense will follow a dismissal of his petition.

We are of opinion that the whole logic of the situation requires that the provision, of the statute in question should be construed to be mandatory. One of the provisions of the act (section 9 [Comp. St. § 4368]) is “that every final hearing upon such petition shall be had in open court before a judge or judges thereof,” etc. In the Ginsberg Case, supra, the Supreme Court held: “Section 9 requires a final hearing upon the petition in open court. The term 'open court’ is used in contradistinction to a judge sitting in .chambers. Bouvier’s Law Dictionary.

The whole statute indicates a studied purpose to prevent well-known abuses by means of publicity throughout the entire proceedings. Its plain language repels the idea that any part of a final hearing may take place in chambers, whether adjoining the courtroom or elsewhere.” Paragraph second of

section 4 provides when the certificate shall be filed.

Section 9 provides where the hearing shall be had. It does not seem that there should be any moré importance attached to the “when” the petition shall be filed than the “where” the hearing is to be had. Each provision is for the purpose of preventing a possible wrong, and the fact that in neither case can it be shown that a wrong has followed the disregard of the provision is aside from the question.

The stringent provisions of the act are intended to prevent in advance any recurrence of those abuses that arose before the act, because of the too liberal exercise of discretion on the part of the courts administering the law. We are of opinion that there was no discretion to permit a departure from one of the simple, but important, provisions of the act, and that the naturalization certificate in this ease was illegally obtained.

The decree of the District Court, dismissing the petition, is vacated, and the District Court is directed to make an order canceling the certificate of citizenship issued to appellee, and send a certified copy of such order to the Bureau of Naturalization, as required by law.