페이지 이미지
PDF
ePub

(273 F.) many of the slow processes, formalties, and strictness of proofs which were rigidly provided and enforced under the law affecting naturalization as it existed then, and as it exists now. The amendments made were not to the title as a whole, but primarily to section 4 of the Act of June 29, 1906, 34 Stat. 596. This section deals, not with persons eligible to become naturalized, but with the procedure to be taken and the showing to be made by those elsewhere defined to be eligible. This in itself is significant in its bearing upon the specific interpretation we are required to make.

However, in the act of May 9, 1918, it was provided that any nativeborn Filipino of the age of 21 years, who has declared his intention to become a citizen of the United States, and any Porto Rican not a citizen of the United States of the age of 21 years and upward, who had enlisted, or might thereafter enlist, generally speaking, in the military ‘or naval service of the United States, might become naturalized in the manner therein prescribed. It makes no other reference to the racial or geographical status of any person contemplated by the amendment. The act also provides that "any alien" who might thus enlist or enter the military or naval service of the United States may be naturalized in like manner. Section 2 of the amending act, as we have seen, expressly provides that

"Nothing in this act shall repeal or in any way enlarge section twenty-one hundred and sixty-nine of the Revised Statutes except as specified in the seventh subdivision of this act and under the limitation therein defined."

The government contends that this limits the privilege to those races otherwise eligible to naturalization, while the petitioner claims that the privilege embraces all aliens of whatever race provided they have rendered the military or naval service specified.

[3] The question, in some of its aspects, at least, and in those which I believe control the decision in this case, is not a new one. Section 2166 of the Revised Statutes of 1878 was a provision of the same general purpose and import. Its scope was unlimited in terms; but standing, as it did, in the same title with section 2169, it was ruled to be limited by the sweeping provisions of the latter section. In re Buntaro Kumagai (D. C.) 163 Fed. 922. A statute of like import was passed by Congress, and approved July 26, 1894 (28 Stat. 124). A Japanese alien asked to be admitted as a citizen of the United States under the provisions of this act. The application was denied. Bessho v. United States, 178 Fed. 245, 101 C. C. A. 605.

[4] Incidentally it has been urged that section 2169 was repealed, by implication, by the act of June 29, 1906 (34 Stat. 596). The contention has uniformly been rejected, and, notably, in cases involving Filipinos. In re Alverto (D. C.) 198 Fed. 688: In re Rallos (D. C.) 241 Fed. 686; In re Lampitoe (D. C.) 232 Fed. 382; United States v. Balsara, 180 Fed. 694, 103 C. C. A. 660. The act of June 29, 1906, provided that the naturalization laws shall apply to authorize the admission to citizenship of all persons not citizens who owe allegiance to the United States, and who may become residents of any state or organized territory of the United States, on certain conditions. This was done

to make possible the naturalization of citizens of the Philippine Islands and of Porto Rico, who were theretofore generally excluded because, first, the naturalization laws of the United States applied only to aliens, and, second, they required a renunciation of former allegiance. It was contended that this provision of the act of 1906 removed the inhabitants of those islands from the limitation of section 2169. A native of the Philippine Islands applied for citizenship upon that ground. Ethnologically he was found to be one-fourth white and three-fourths brown or Malay. His application was denied for the reason that he was not a white person, and section 2169 controlled and limited the provisions of the act of 1906 as part of the general naturalization statute of the United States. In re Alverto, supra.

It should be borne in mind that the policy of our law, from 1802 down to the present time, has had in view the prevention of all aliens, not free white persons, from becoming citizens. The first exception was introduced by the act of July 14, 1870 (Comp. St. § 4358), at which time persons of African nativity and African descent were included, in view, as has been stated, of the peculiar situation of inhabitants in this country of that race. The revisers of the laws of the United States, at the first session of the Forty-Third Congress from 1873 to 1874, inadvertently omitted the words "free white persons" from section 2169; but this was immediately corrected, upon discovery, by Act of February 18, 1875, entitled “An act to correct errors and to supply omissions in the Revised Statutes of the United States," and the language of that section was restored to its present reading. The repealing section of the act of 1906 did not include section 2169, and the present act of 1918 expressly preserves it in force, "except as specified in the seventh subdivision of this act and under the limitation therein defined." The history of legislation upon this subject convincingly demonstrates the purpose of Congress to limit applicants for naturalization to free white persons and those of African nativity and descent.

We have, then, to consider the meaning of the language last quoted. What are the specifications referred to in the seventh subdivision, and what is the limitation therein defined? As has been said, the only reference to race contained in that section

vas as to Filipinos and Porto Ricans. For this reason, it may well have been deemed necessary, or at least expedient, to reaffirm the binding force and effect of section 2169. It has already been shown that Filipinos, in certain cases, have been adjudged inadmissible to citizenship because of racial disqualification. Some citizens of Porto Rico may be conceived to present similar disabilities. Congress, in passing this law, must be presumed to have acted with knowledge of all previous legislation and of its interpretation by the courts. The exceptions referred to must have been the races especially mentioned in the seventh subdivision, and the limitation was the military or naval service performed. In other words, under the general law, neither a Filipino nor a Porto Rican could necessarily have been admitted to citizenship. Under this subdivision, he may bé, irrespective of race, if he has performed the service specified.

If, as contended by the petitioner, the exception reserved was in

(273 F.) tended to mean any alien who should perform military service, it is difficult to perceive why the provision as to the continuing force of section 2169 was necessary at all; the limitation of military or naval service being sufficient to preserve that section intact in all its general features. This view is corroborated and emphasized by the fact that, throughout the original title 30, Revised Statutes of 1878, the term “any alien” is used repeatedly without qualification, the limitation to free white persons and those of African nativity and descent being raised entirely from section 2169; and the same is true of section 2166 and other acts conferring special privileges upon soldiers and sailors. Moreover, as has been previously stated, the Act of May 9, 1918, was chiefly intended to modify section 4 of the Act of 1906 as to procedure merely, shortening the time and smoothing the way to citizenship. Section 2169 has to do only with racial qualification, and out of abunance of caution it was expressly reaffirmed.

[5] It may be added that the provisions of the draft law clearly did not contemplate the incorporation of those not eligible to citizenship into the land and naval forces of the United States. That such may have been inducted into the service through voluntary enlistment or inadvertence of draft boards cannot affect the purpose of Congress. It must be remembered that:

“Naturalization creates a political status which is entirely the result of legislation by Congress, and, in the case of a person not born a citizen, naturalization can be obtained only in the way in which Congress has provided that it shall be granted, and upon such showing of facts as Congress has determined must be set forth." In re Alverto (D. C.). 198 Fed. 688; In re Knight (D. C.) 171 Fed. 299.

The objection to this applicant is not founded upon any personal consideration. On the contrary, recognition of his educational qualifications and character is supplemented by appreciation of his military service. It may very well be conceded that that service should be appropriately rewarded, but the privilege of citizenship rests with Congress, and with Congress alone, and the courts have no power to alter or extend the provisions of law to that end. The petition is accordingly denied.

On Rehearing. [6] On petition for rehearing the attention of the court has been urgently called to the provision of the subsequent Act of July 19, 1919, to which reference was made, but which was not discussed in brief or argument at the former hearing. The provision referred to reads as follows:

“Any person of foreign birth who served in the military or naval forces of the United States during the present war, after final examination and acceptance by the said military or naval authorities, and shall have been honorably discharged after such acceptance and service, shall have the benefits of the seventh subdivision of section 4 of the Act of June 29, 1906, Thirty-fourth Statutes at Large, part 1, page 596, as amended, and shall not be required to pay any fee therefor; and this provision shall continue for the period of one year after all of the American troops are returned to the United States."

Because of the importance of the question involved and the earnestness of counsel, the court has made further investigation of the proceedings in Congress attending this legislation, in order, if possible, to ascertain the intent and purpose of that body in view of the claimed ambiguity in the language employed. This enactment appears in the naturalization section of the Sundry Civil Act, Public No. 21, 66th Congress. It is not mentioned in the report on the bill, and a search of the Congressional Record discloses that it was not mentioned in any of the debates either in the House or Senate, and therefore there is nothing in the records of Congress to show the intent of Congress as to this particular section. It is worthy of note in this connection that a bill of similar purport, H. R. 6804, entitled “A bill to facilitate the naturalization of persons who served in the military or naval forces of the United States since April 6, 1917, who have been, or who may be, honorably discharged therefrom,” introduced June 27, 1919, by Congressman Rogers, and referred to the committee on immigration and naturalization, failed to pass. It would seem, therefore, that this clause of the naturalization section of the Act approved July 19, 1919, was simply attached as a rider to an appropriation bill, and went through without scrutiny or debate by either house. It cannot, therefore, in the absence of language clearly expressing that purpose, be held to relax the provisions of the prior Act of May 9, 1918, which have been duly considered.

The court has also received a copy of the report of the Senate committee on immigration upon the Act of May 9, 1918, aforesaid. It contains this significant language:

"It (section 2 of the act] also declares that nothing in the act shall enlarge or repeal in any way section 2169 of the Revised Statutes, except as specified in the seventh subdivision and under the limitation therein defined. This means that Filipinos may be naturalized who are enlisted in the army or navy of the United States and are honorably discharged therefrom."

This confirms the purpose and intent of Congress as deduced and declared in the foregoing memorandum. The words “any person of foreign birth” occurring in the Act of July 19, supra, do not enlarge the word "alien" as contemplated by these acts, in view of their specific reservations. A reason for the later legislation, if one is necessary to be advanced, is found in the further limitation of the application of the provisions of section 7 to a period of one year after all the American troops are returned to the United States, which provision is not found in the earlier act.

For the foregoing reasons, I am constrained to adhere to the conclusion reached in my original opinion.

(273 F.)

TRAFIKATIEDOLAGET GRANGESBERG OXELOSAND V. AINES

WORTH COAL & IRON CO.

(District Court, D. Maryland. June 9, 1921.)

No. 707.

L Shipping Onw38_Breach of bunkering provision by owner does not entitle

charterer to cancel.

Under the rule that when mutual covenants go only to a part, where the breach may be paid for in damages, they cannot be pleaded as a condition precedent, the breach by an owner of a provision in a charter party for the transportation of a cargo of coal giving the charterer the right to bunker the vessel does not authorize the charterer to cancel the charter party, but merely entitles it to recover damages for the breach of

that provision. 2. Shipping Cw58(3)—Charterer can recover for breach of bunkering clause

loss on coal and expenses of preparing it for ship.

A charterer can recover from the vessel owner, as damages for breach of the clause in the charter party giving the charterer the right to bunker the vessel, not only the difference between the market price of the coal which the vessel would necessarily have had to put in her bunkers for the voyage and the market price at time of resale of such coal, but also any expenses in preparing the coal for delivery to the ship which

would not add to its market value on resale. 3. Shipping 58 (2)—Evidence held not to show breach by owner of bunk

ering agreement.

On a libel for cancellation of a charter party, in which the charterer filed a cross-libel for breach of the bunkering clause by the owner, evidence of written communications and telephone conversations between the agents of the parties held to show that, after the vessel had been bunkered through a misunderstanding of the charter provisions, the owner offered to purchase the bunker coal from the charterer or to discharge that in the vessel's bunkers, and to take on that of the charterer before the time for cancellation of the charter party, so that there was

no breach of the bunkering agreement. In Admiralty. Libel by the Trafikatiedolaget Grangesberg Oxelosand against the Ainesworth Coal & Iron Company to recover damages for the cancellation of a charter party, to which the respondent filed a cross-libel for breach of the charter party. Decree for libelant on the original libel, and cross-libel dismissed.

Brown, Marshall, Brune & Parker, of Baltimore, Md., for libelant.

George Forbes and John Phelps, both of Baltimore, Md., for respondents.

ROSE, District Judge. Each of the parties is a corporation—the libelant of Sweden; the respondent of this country. The former chartered its steamship Narvik to the latter, to carry 6,500 tons of coal, 10 per cent, more or less, at $15 per ton, from Baltimore, Norfolk, or Philadelphia, to a Scandinavian port. Had the charter been carried out, the freight earned would have been somewhere between $87,750 and $107,250. The parties will be referred to as the owner and the charterer, respectively.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

« 이전계속 »