Bindczyck v. Finucane, Chairman of the Board of Immigration Appeals, et al. Certiorari To the United States Court of Appeals for the District of Columbia Circuit

No. 18. Argued October 10, 1951.-Decided November 26, 1951.

1. The procedure prescribed by § 338 of the Nationality Act of 1940,

8 U. S. C. § 738, is the exclusive procedure for revoking naturaliza- tion on the ground of fraud or illegal procurement, based on evi- dence outside the record. Pp. 77-88.

2. A state court granted petitioner a certificate of citizenship. At

the same term, as permitted by state practice, it granted a motion of the Government, based on evidence outside the record, to vacate and set aside its order of naturalization on the ground of fraud in procurement. Petitioner appeared personally and admitted the fraud. Held: This revocation of petitioner's naturalization is void, because it was not in accordance with the uniform procedure pre-

scribed by § 338 of the Nationality Act. Pp. 77-88.

(a) Congress intended to prescribe a uniform and carefully safe- guarded procedure for. revoking naturalization on the ground of fraud or illegal procurement based on evidence outside the record; and this purpose would be defeated if state courts could follow instead widely diverse state rules affecting the finality of local judgments. Pp. 79-86.

(b) A different result is not required by Tutun v. United States, 270 U. S. 568, sustaining the right of an alien to appeal from an order denying naturalization. Pp. 86-88.

87 U. S. App. D. C. 137, 184 F. 2d 225, reversed.

The District Court granted petitioner a judgment de- claring him to be a citizen of the United States. The Court of Appeals reversed. 87 U. S. App. D. C. 137, 184

F. 2d 225. This Court granted certiorari. 341 U. S. 919.

Reversed, p. 88.

Joseph A. Fanelli argued the cause and filed a brief for petitioner.

76

Opinion of the Court.

James L. Morrisson argued the cause for respondents.

With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosen- berg and Edward S. Szukelewicz.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

On December 2, 1943, the Circuit Court of Frederick County, Maryland, issued a certificate of naturalization to petitioner after proceedings that conformed with the requirements of the Nationality Act of 1940. 54 Stat.

1137, 8 U. S. C. § 501 ff. Seven days later, and at the same term of court, the Government moved to vacate and set aside the order of naturalization, claiming on evidence outside the record that it was obtained by fraud and that therefore the citizenship was illegally procured.

It is admitted that the requirements of § 338 of the Nationality Act, wherein Congress made specific pro- vision for "revoking... . to citizenship . . . on the ground of fraud or on the ground that such order . . . [was] illegally procured," ' were not,

the order admitting .

.

'54 Stat. 1137, 1158, 8 U. S. C. § 738. The pertinent portions of the section are:

"(a) It shall be tie duty of the United States district attorneys for the respective districts, upon affidavit showing good cause there- for, to institute proceedings in any court specified in subsection (a) of section 301 in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured.

"(b) The party to whom was granted, the naturalization alleged to have been fraudulently or illegally procured shall, in any such proceedings under subsection (a) *of this section, have sixty days' personal notice in which to make answer to the petition of the

Opinion of the Court.

followed.

Instead, the Maryland court exercised its gen- eral power under Maryland law to set aside judgments during the term of court in which they were rendered.'

We brought this case here to determine whether the requirements of § 338 control the revocation of citizen- ship on the ground of fraud or on the ground that it was illegally procured; or whether the grant of citizenship by the courts of the forty-eight States is subject to what- ever summary control State courts may have over their merely local judgments. The questions are of obvious importance in the administration of the naturalization laws, apart from the conflict between the views of the court below and those of the Court of Appeals for the Seventh Circuit in United State8 ex rel. Volpe v. Jordan, 161 F. 2d 390.

The issue was raised by petitioner's action in the Dis- trict Court for the District of Columbia for a judgment declaring him to be a citizen of the. United States and for an. order restraining respondents from deporting him.

Upon a motion by the Government to dismiss the com- plaint, petitioner moved for summary judgment which was granted by the District Court, declaring petitioner "to be a national and citizen of the United States" but "without prejudice to the government's right to institute appropriate proceedings for denaturalization under Sec.

338 of the Nationality Act of 1940." The Court of Ap- peals reversed, 87 U. S. App. D. C. 137, 184-F. 2d 225, and we granted certiorari.

United States; and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought."

2 See Eddy v. Summers, 183 Md. 683, 687, 39 A. 2d 812, 814 (1944).

BINDCZYCK v. FINUCANE. 76

Opinion of the Court.

Due regard for § 338, including the history of its origin, and for the nature of a judgment of naturalization, to- gether with a consideration of the conflicting and capri- cious diversities of local law affecting the finality of local judgments, compel us to hold that § 338 is the exclusive procedure for canceling citizenship on the score of fraudu- lent or illegal procurement based on evidence outside the record.

Section 338 of the Nationality Act of 1940 is for our purpose the reenactment of § 15 of the Act of June 29,.

1906, 34 Stat. 596, 601. That Act was the culmination of half a century's agitation directed at naturalization frauds, particularly in their bearing upon the suffrage.'

On the basis of a nationwide survey to determine the inci- dence and causes of naturalization frauds with a view to devising recommendations for corrective legislation, Pres-

3 As early as 1844, a Senate resolution called for an inquiry into these frauds and into the possibility of a judicial procedure for canceling fraudulent naturalization certificates. S. J., 28th Cong., 2d Sess. 40, 44. For a summary of pre-Civil War legislative activity in regard to naturalization see Franklin, The Legislative History of Naturalization in the United States. Annual messages of the Presi- dents, from Grant onward, urged remedial legislation. Richardson, Messages and Papers of the Presidents: Grant, 1st Annual Message, 1869, 6th Annual Message, 1874, 7th Annual Message, 1875, 8th An- nual Message, 1876; Arthur, 4th Annual Message, 1884; Cleveland, 1st Annual Message, 1885, 2d Annual Message, 1886, 4th Annual Mes- sage, 1888; Harrison, 1st Annual Message, 1889, 2d Annual Message, 1890; Roosevelt, 3d Annual Message, 1903, 4th Annual Message, 1904, 5th Annual Message, 1905. Grant and Cleveland asserted specifically that there was no way for the Government to obtain a revocation of fraudulently acquired citizenship and asked for correction of this deficiency.

Id., Grant, 6th Annual Message, 1874; Cleveland, 1st Annual Message, 1885. But Harrison called attention to a "new application of a familiar equity jurisdiction" whereby over a hundred naturalization orders had been vacated at the instance of the Attorney General by the United States Circuit Courts in original equity suits. As he saw -it, the urgent remaining need was

Opinion of the Court.

ident Theodore Roosevelt's Commission on Naturaliza- tion prepared a report which was the foundation of the Act of 1906. H. R. Doc. No. 46, 59th Cong., 1st Sess.

This report, the hearings before congressional committees and their reports, the floor debates on the proposed measure, leave no doubt that the target of legislation was fraudulent naturalization.'

It is equally clear that the remedy for the disclosed evil lay in the effective exer- cise of the power of Congress "To establish an uniform Rule of Naturalization." U. S. Const., Art. I, § 8, cl. 4.

To prevent fraud in a proceeding before a naturaliza- tion court, the Act devised a scheme of administrative oversight for the naturalization process. The Govern- ment was given the right to appear. § 11, 34 Stat. 596,

599. This right was fortified by requiring notice of the

petition to the newly created Bureau of Immizration and Naturalization and a ninety-day waiting period be- tween the filing of the petition and the final hearing. §§ 6 and 12, 34 Stat., 596, 598 and 599. These were safeguards to enable verification by the Bureau of the

for an adequate prenaturalization investigation.

Annual Message, 1890.

Id., Harrison, 2d

In 1903, a federal grand jury investigated and a Special Assistant United States Attorney was charged with prosecution of naturaliza- tion frauds in New York City. See Rep. Atty. Gen. v, 392 (1903);

H. R. Doc. No. 46, 59th Cong., 1st Sess. 76. A special examiner

for the Department of Justice made a nationwide investigation, a report of which was transmitted to Congress. See Rep. Atty. Gen.

393 (1903).

See generally Roche, Pre-Statutory Denaturalization, 35 Cornell L. Q. 120.

4 See, e. g., H. R. Doc. No. 46, 59th Cong., 1st Sess. 11-15, 20:-13, 76-78, 79-92; Hearings before the House Committee on Immigration and Naturalization on the Bills to Establish a Bureau of Naturaliza- tion, and to Provide for a Uniform Rule for the Naturalization of Aliens Throughout the United States, 59th Cong., 1st Sess. 3-54;

H. R. Rep. No. 1789, 59th Cong., 1st Sess. 2; S. Rep. No. 4373, 59th

Cong., 1st Sess: 2; 40 Cong. Rec. 3640 ff.

BINDCZYCK v. FINUCANE. 76

Opinion of the Court.

facts alleged in the petition and investigation of the quali- fications of the applicant for citizenship.' By these provisions Congress r'ecognized that enforcement is the heart of the law.

But Congress was not content to devise measures against fraud in procuring naturalization only.

In § 15 of the Act of 1906 it formulated a carefully safeguarded method for denaturalization. Though the principal criti- cism leading to the enactment concerned the evils in- herent in widely diverse naturalization procedures, ex- perience was not wanting Qf the dangers and hardships

5 These provisions were suggested by the special Commission on Naturalization. See H. R. Doc. No. 46, 59th Cong., 1st Sess. 17, 99.

In his Second Annual Message, President Harrison had rec- ommended a waiting period for investigation. See Richardson, Mes- sages and Papers of the Presidents, Harrison, 2d Annual Message,

for a similar suggestion from the Special Examiner in Relation to Naturalization.

No section of the Act was more thoroughly debated than this one.

Three separate amendments to reduce the waiting period were re- jected. 40 Cong. Rec. 7762-7770. The period was cut to thirty days in the Nationality Act of 1940, 54 Stat. 1137, 1156, 8 U. S. C. § 734 (c). But the codifiers reiterated that the purpose of the delay was to permit the Government "to make further inquiry as to the eligibility of the applicant and the competency of his witnesses."

Hearings before the House Committee on Immigration and Natu- ralization on H. R: 6127, superseded by H. R. 9980, 76th Cong., 1st Sess. 466.

The opportunity for investigation provided by these sections was taken full advantage, of by the Bureau. See H. R. Rep. No. 1328, 69th Cong., 1st Sess. 1. Indeed, in 1926, the investigations were made a formal part of the naturalization process in the federal courts by permitting officers of the Bureau to conduct the examination of the applicant's witnesses prior to final hearing on the petition and authorizing the naturalization judge to forego such examination on final hearings if the recommendation of the Bureau was favorable.

44 Stat. 709. This procedure was extended to state naturalization courts as well in 1940. 54 Stat. 1137, 1156,.8 U. S. C. § 733.

Opinion of the Court.

Informa- attendant on haphazard denaturalization. tion was before Congress that ever since 1890 the then circuit courts had vacated naturalization orders at the suit of the Attorney General,' although when the validity of § 15 was before it, this Court left open the question whether a court of equity had such power without express legislative authority. Johannessen v. United States, 225 U. S. 227, 240. But the revocation of citizen- ship before 1906 was not always surrounded by the safe- guards of an original equity proceeding. See, e. g., Tinn

v. United States District Attorney, 148 Cal. 773, 84 P.

Indeed, the history of the Act of 1906 makes 152 (1906)." clear that elections could be influenced by irregular de- naturalizations as well as by fraudulent naturalizations.

The only instance in the extensive legislative materials of vacation of naturalization orders by what appears to have been the procedure urged by the Government in this case involved just such a situation. A judge who had naturalized seven aliens on the supposition that they were members of his own political party promptly vacated

8 See Richardson, Messages and Papers of the Presidents, Har-

1,916 fraudulently obtained natu- rison, 2d Annual Message, 1890. in New ralization certificates were canceled York City in, the two-year period to May 29, 1905. H. R. Doc.

No. 46, 59th Cong., 1st Sess. 76; H. R. Rep. No. 1789, 59th Cong., 1st Sess. 2.

in civil proceedings

7 In that case, nine citizenship orders were revoked in an ex parte proceeding on oral motion of the United States District Attorney, purporting to be made as in the course of the original proceedings, over three years after the orders admitting to citizenship. This action was, however, reversed on appeal.' See also 40 Cong. Rec.

7045 where it is stated that upon the announcement by the United States District Attorney in San Francisco that immunity from prose- cution would be given to any holder of a fraudulently acquired cer- tificate who surrendered it for cancellation, 204 certificates were turned in in the first thirty days.

BINDCZYCK v. FINUCANE. 83 76

Opinion of the Court.

his order when this supposition was corrected. See Rep.

Atty. Gon. 394 (1903),8

Significantly, floor action on § 15 in the House 'reveals a specific purpose to deprive the naturalizing court as such of power to revoke. The original bill authorized United States attorneys to institute revocation proceed- ings in the court issuing the certificate as well as in a court having jurisdiction to naturalize in the district of the nat- uralized citizen's residence. H. R. 15442, 59th Cong., 1st Sess., § 17. A committee amendment adopted just before final passage put the section in the form in which it was enacted. That amendment, in the words of Congress- man Bonynge, the manager of the bill, "takes away the right to institute [a revocation proceeding] in the court out of which the certificate of citizenship may have been issued, unless the alien happens to reside within the juris- diction of that court." 40 Cong. Rec. 7874.

In the light of this legislative history we cannot escape the conclusion that in its detailed provisions for revok- ing a naturalization because of fraud or- illegal procure- ment not appearing on the face of the record, Congress formulated a self-contained, exclusive procedure. With a view to protecting the Government against fraud while safeguarding citizenship from abrogation except by a clearly defined procedure, Congress insisted on the de- tailed, explicit provisions of § 15. To find that at the same time it left the same result to be achieved by the confused and conflicting medley, as we shall see, of State procedures for setting aside local judgments is to read congressional enactment without respect for reason.

8 Objections 'were raised, on similar grounds, to the section in

the original bill. providing for appeal from naturalization orders and requiring a stay of the issuance of the certificate pending appeal. It was argued that a partisan district attorney might influence a close election by judiciously choosing the cases in which to appeal and obtain the stay. 40 Cong. Rec. 7786.

Opinion of the Court.

Between them, these two sections, § 11 and § 15, pro- vided a complete and exclusive framework for safeguard- ing citizenship against unqualified applicants. Under the first, the Government was given ample opportunity to interpose objections prior to the order of naturaliza- tion. If proper account was not taken of the evidence, the Government had recourse to appeal for examination of the action of the naturalizing court on the record.

Tutun v. United States, 270 U. S. 568. Congress, how- ever, thought that ninety days was quite enough time for the Government to develop its case-indeed many members deemed it too long. 40 Cong. Rec. 7766-7770.

At the expiration of that time, if citizenship was granted, it was to be proof against attacks for fraud or illegal pro- curement based on evidence outside the record, except through the proceedings prescribed in § 15. The con- gressional, scheme, providing carefully for the representa- tion of the Government's interest before the grant of citizenship and a detailed, safeguarded procedure for at- tacking the decree on evidence of fraud outside the record,' covers the whole ground. Every national interest is thereby protected.

Neither uncontested practice nor adjudication by lower courts has rendered a verdict which is disregarded by our construction of § 338. Nor as a rule for future conduct is any burden thereby placed on the Government in setting

9 It deserves emphasis that we are dealing here with the revocation of naturalization "on the ground of fraud or on the ground that .. . [the naturalization was] illegally procured," to be established outside the record. We have not before us, and therefore do not decide, the power of a State court to control its naturalization judgment to the extent of correcting some clerical error.

And, of course, the present case does not touch situations where under State law a judgment does not come into being until a defined period or event after a decision is rendered. Compare Commissioner

v. Estate of Bedford, 325 U. S. 283, 284-288.

76

Opinion of the Court.

aside a naturalization order where it can prove illegality or fraud.

An abstract syllogism is pressed against this natural, because rational, treatment of § 338 as the exclusive and safeguarding procedure for voiding naturalizations granted after compliance with the careful formalities of § 334.10 Grant of citizenship is a judgment; a judgmeit is within the control of the issuing court during the court's term; therefore naturalization is subject to revocation for fraud or illegal procurement during the term of the court that granted it. So runs the argument. Such abstract reasoning is mechanical jurisprudence in its most glitter- ing form.

It disregards all those decisive considerations by which a provision like § 338 derives the mean.ng of life from the context of its generating forces and its pur- poses.

It also disregards the capricious and haphazard results that would flow from applying such an empty syllogism to the actualities of judicial administration.

By. giving State courts jurisdiction in naturalization cases, Congress empowered some thousand State court judges to adjudicate citizenship.

If the requirements specifically defined in § 338 for revocation of citizenship were to be supplemented by State law regarding control over judgments by way of the "term rule'" or otherwise, the retention of citizenship would be contingent upon application of myriad discordant rules by a thousand judges scattered over the land.

Wide and whimsical diversities are'revealed by the local law of the forty-eight States in the power of their courts to set aside local judgments.11 The courts of some States have no power to set aside their own judgments; courts

10 54 Stat. 1137, 1156, .8 U. S. C. § 734.

"I The conflicting varieties of State rules for vacating judgments are

illustratively summarized in an Appendix, post, p. 88.

972627 0-52-11

Opinion of the Court.

in other States have almost unlimited power. Not only is there this great diversity among the States. There are capricious differences within individual States. That Congress, composed largely of lawyers, should have gone through the process of the elaborate definition in § 338 but impliedly also allowed denaturalization through the eccentricities and accidents of variegated State practice, is an assumption that ought to have a solider foundation than an abstract syllogism. Without more, we cannot believe that Congress would subject a naturalized citi- zen-who has achieved that status only by the protecting formalities of the Nationality Act-to such unpredictable attack."2

Finally, it is suggested that since § 15 was found not to prevent the taking of appeals from a naturalization order, Tutun v. United States, supra, and since there are diversities in the time for appeal among State courts with power to naturalize, the diversities among State courts in the power to vacate their own judgments ought not to require resort-to § 338 as the exclusive, uniform proce- dure for denaturalization.

One answer is that the Act of 1906 and its successor, the Nationality Act of 1940, had no provision whatever as to appellate review of errors appearing of record in a naturalization court. On the other hand, Congress laboriously dealt with the revocation of naturalization

12 That Congress was not inattentive to existing variations in State practice, where it wished to absorb them, is shown by the last portion

"... and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon ab- sentees by the laws of the State or the place where such suit is brought." (Emphasis added.)

BINDCZYCK v. FINUCANE. 76

Opinion of the Court.

obtained by fraud or otherwise illegally. And since ap- pellate review is so ingrained a part of American justice, this Court in the Tutun case naturally held that it was not to be assumed that Congress denied the right of appeal merely because it did not affirmatively confer it. Of course there are differences among State judici- aries as to the time within which an appeal can be taken.

But the differences are within a narrow and unimportant range 13 compared with the enormous and quixotic dif- ferences relating to a court's control over its judgments on the score of fraud or illegality.

It is one thing to allow some play for the joints in a statutory scheme like the Nationality Act, enforceable by both State and fed- eral courts.

It is quite another to inject a wholly dislo- cating factor by incorporating the diverse State rules for vacating judgments into the revocation process, which Congress specifically and comprehensively dealt with in :§ 338.

Congressional concern for uniformity in post-naturali- zation proceedings was shown in this very connection.

The bill before Congress in 1906 provided for a uniform mode of appeal to the United States Circuit Courts of Appeals from naturalization judgments rendered by State, as well as federal, courts. H. R. 15442, 59th Cong., 1st Sess., § 13. Constitutional doubts and the practical prob- lems which such an anomalous procedure would raise led to the omission of this section, leaving appeal procedure to the States. 40 Cong. Rec. 7784-7787.

It is not to be supposed, however, that where, as with denaturalization, such doubts and anomalies were not present, Congress

13 Vagaries among the States as to time for appeals are not substan- tial. The times for appeal fixed by States range principally from thirty days to three months. See Pound, Appellate Procedure in Civil Cases, 340-342.

Appendix to Opinion of the Court.

would gratuitously abandon the constitutional mandate It to establish "an uniform Rule of Naturalization." established such a rule in § 338.

Accordingly, the judgment below must be reversed and that of the District Court reinstated.

It is so ordered.

MR. JUSTICE CLARK and MR. JUSTICE MINTON took no part in the consideration or decision of this case.

[For dissenting opinion of MR. JUSTICE REED, joined by MR. JUSTICE BURTON, see post, p. 92.]

The diversities in State rules governing the power to vacate judgments are illustrated by the following:

(1) The common law rule, still followed by many

States, including Maryland, is that for the duration of the term in which the judgment is entered the court may en-

1 It is hardly necessary to note that the best effort to secure

fastidious accuracy and currency in such matters as the Lcal rules here summarized cannot assure them. The interpretation of local law, especially as to practice, is treacherous business for an outsider.

The very uncertainty of the local rules makes it all the more unlikely that Congress intended to subject citizenship by naturalization to such attack.

Of course only State courts with power to naturalize, that is, "having a seal, a clerk, and jurisdiction in actions at law or equity, .or law and equity, in which the amount in controversy is unlimited," 54 Stat. 1137, 1140, 8 U. S. C. § 701 (a), are here canvassed.

A great many States provide procedures-statutory or common law-for vacating judgments by a separate proceeding in the nature

BINDCZYCK v. FINUCANE. 76

Appendix to Opinion of the Court.

tertain a motion to change it.2 This "term rule" inevi-

(a) States differ very substantially in the length of court terms set by legislature or court. See 3 Mar- tindale-Hubbell Law Directory, "Court Calendars" (1951). For example, in several counties of Ken- tucky the Circuit Court holds terms of only six days' duration; in contrast, the terms of the .Oklahoma District Courts are six months in length.

(b) Even within. a State the length of terms may vary greatly.' Consider Indiana, for example.

The Marion County (Indianapolis), Superior Court has monthly terms; some -judges of the Lake County Superior Court hold terms lasting (or six months.'

(c) In a good many States the length of term may fluctuate with the amount of business that happens

of an equity suit. See, e. g., Kan. Gen. Stat., 1949, § 60-3007 et seq.

The Government in this case does not argue that these collateral procedures are available in the face of § 338. But it is not obvious why the argument of implied State control over a State judgment is not also relevant as to these State methods for controlling judg- ments.

2 The medieval idea of dividing the calendar year for judicial purposes into terms and vacations developed from the necessities of sowing and harvesting, and from the demands of the Church for religious peace at certain seasons of the year. See 1 Reeves, History of English Law, 191-192; 3 Holdsworth, A History of English Law, 674-675.

3 The States used as illustration under this division (1) are only those which, as far as investigation discloses, follow the common law "term rule."

4 Texas provides striking illustrations of diversity within a single State. The Texas District Courts vary greatly from county to county in the number of terms per year and in the specified length of the terms; many District Courts are in continuous session, others

Appendix to Opinion of the Court.

to be before the court, and with the untrammelled discretion of a judge in adjourning sine die. Unless adjourned sine die or concluded by the terminal date set by statute, a term, in general, ends only at the commencement of the next succeeding term held at the same place. See, e. g., Comes v. Comes, 190 Iowa 547, 178 N. W. 403 (1920); Hensley v. State, 53 Okla. Cr. 22, 3 P. 2d 211.(1931). Thus, a term may be less than a day in length, or it might be a full year where the court has only one. prescribed term annually.

(d) There is an inherent uncertainty in the "term rule." Consider a court with a prescribed or per- mitted term of ten months. E. g., Rhode Island Superior Court in Providence, R. I. Gen. Laws, 1938,

c. 498, § 2. A citizenship obtained by naturalization

on the first day of the term might be vacated at any time within 10 months-under the reasoning of the Government; whereas the alien fortunate 'enough to be naturalized on the last day of the term would have citizenship indefeasibly except by the safe- guarded procedure of § 338.

(2) A number of States have statutes similar to that of

Alabama reading: "The circuit courts . . . shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times." Ala. Code, 1940, Tit. 13, § 114.

In those States wide disparity in the time within which a judgment may be vacated is introduced

sit "till finished," and others have fixed terms of 3, 4, 6, 8 or 10 weeks. The judgments of certain District Courts with terms of 3 months or longer become "as final . . . 30 days after the date of judgment . . . as if the term of court had expired." Vernon's Tex.

Civ. Stat., 1926, Art. 2092 (30); Joy v. Young, 194 S. W. 2d 159 (Tex. Civ. App. 1946).

BINDCZYCK v. FINUCANE. 76

Appendix to Opinion of the Court.

(a) Some of these States provide by statute that a court has control of its judgments and may vacate

Minnesota-Minn. Stat., 1949, § P44.32.

Kentucky (courts in continuous session)-Ky.

Rev. Stat., 1946, § 451.130 (1).

AlabAma-Ala. Code, 1940, Tit. 13, § 119.

Illinois-L-Ill. Rev. Stat., 1949, c. 77, § 82.

Maryland (Baltimore City Court)-See Harvey

v. Slacum, 181 Md. 206, 29 A: 2d 276 (1942).

New Mexico-N. M. Stat., 1941, § 19-901.

(b) Other States provide that only the motion for setting aside the judgment need be filed within a fixed period; the length of these periods also varies

"A reasonable time not exceeding six months:" Arizona-Ariz. Code Ann., 1939, § 21-1502.

California-Deering's Cal. Code Civ. Proc., 1949, § 473.

Nevada-See Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140 P. 2d 953 (1943). (c) At any rate either the fixed period or the reasonable time for vacating judgments produces quite different results from the erratic consequences of the "term rule."

(3) In some States, it appears, a court has no control

over its judgments after they are signed and entered.

See, e. g., Louisiana Bank v. Hampton, 4 Mart. 94 (La.

1816); Nelson & Co. v. Rocquet & Co., 123 La. 91, 48 So.

756 (1909).

In Massachusetts a court has no jurisdiction

REED, J., dissenting.

to vacate a judgment "on mere motion" except for cler- ical error. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, 98 N. E. 696 (1912). But see Mass. Gen.

Laws, 1932, c. 250, §§ 14-20.

MR. JUSTICE REED, with whom Ma. JUSTICE BURTON joins, dissenting.

Upon filing of his petition for naturalization, an order and a certificate of naturalization were issued immediately by the Circuit Court of Frederick County, Maryland, on December 2, 1943, to petitioner Bindczyck, a soldier in the United States Army. Nationality Act of 1940, § 324, 54 Stat. 1149. On the next day he disclaimed loyalty to the United States and stated his desire to leave the country after the war.

Seven days after the naturalization and within the same term of the circuit court, the United States filed in the naturalization proceeding a motion to vacate and set aside the order of naturalization on the ground that newly discovered evidence showed Bindczyck swore falsely con- cerning his loyalty toward the United States and its de- fense. Bindczyck in open court admitted'the charge.

Thereupon the Maryland court directed that the order of citizenship be vacated, the certificate of naturalization voided, and thq case restored to the pending calendar for immediate hearing. The record shows no further pro- ceedings in Maryland, either by further hearing or by appeal.

On June 15, 1948, while he was in custody for deporta- tion, Bindczyck filed a complaint in the District Court for the District of Columbia praying a declaration that he' was a citizen of the United Siates. This was based on the contention that the order vacating his admission to citizenship was void because it had been issued without compliance with § 338 of the Nationality Act of 1940, set out in note 1 of the Court's opinion, ante, p. 77.

BINDCZYCK v. FINUCANE. 76

REED, J., dissenting.

The Court upholds Bindczyck's contention. By that judgment the Court in a collateral proceeding determines that the vacation by the Maryland court of its order and the cancellation by that court of the certificate of natural- ization are void because the proceedings were not taken in accordance with the above-mentioned § 338. That is, a state court with the alien before it has no power so to act, although it had jurisdiction to hear his application and enter an order for his naturalization. § 301.

The Court's judgment, we thInk, flows from its disre- gard of a postulate of statutory construction. This im- portant principle is that new legislation is to be construed in the setting of existing law and practice.1 Since sound methods of statutory interpretation are important in the administration of justice, it seems worthwhile to state the reasons for disagreement. A dissent may help to avoid another and further departure from normal statutory interpretation.'--

Even the most comprehensive legislation cannot be con- sidered as though it were the entire body of the law.- The continuation of courts and practices is assumed. Con- gress may give concurrent jurisdiction over federal mat- ters to both state and federal courts. Of course, the jurisdiction of federal courts over federal, mttrs may be made exclusive of all other tribunals by Congress.2 That body may also, we assume, put limits on state court powers concerning federal rights. When Congress grants concurrent jurisdiction over federal matters, however, such a grant of power is to be exercised in accordance with the normal practices and procedure of the respective

1 See United States v. Sanges, 144 U. S. 310, 311; Crawford, Statu- tory Construction (1940), c. XXII; 1 Bishop on Criminal Law (9th ed., Zane & Zollman, 1923) § 291b. Cf. Stark v. Wickard, 321

U. S. 288, 309; Burnet v. Harmel, 287 U._S. 103, 108.

2 For examples, see 28 U. S. C. §§ 1333,-1334, 1338 (a), 1351, 1355, and 1356.

REED, J., dissenting.

courts unless specifically or by necessary implication the federal legislation requires such limitation.'

We have had provisions for naturalization since March 26, 1790." They have grown in complexity through the years. Under the Act of 1906, as shown by the Court's opinion, the Congress sought to remedy the evils of fraud- ulent naturalization and to protect the new citizen against cancellation of his certificate in an inconvenient forum or without proper notice. This purpose has been carried out in the present 1940 Act practically by the same words, so far as the sections here involved are concerned. Power over naturalization has remained in both state and federal courts of general jurisdiction.5

There is not a suggestion in the acts or in the legislative history that, by the enactment of § 15 of the earlier Act

3 This principle was adverted to in the Second Employers' Lia-

"Because of some general observations

in the opinion of the Supreme Court of Errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress and susceptible of adjudication according to the prevailing rules of procedure."

4Act of March 26, 1790, 1 Stat. 103. See Statutory History of Naturalization in the United States, Report of Secretary of State, January 19, 1904, appenael\td Report to the President of the Com- mission on Naturalization, \14,'R. Doc. No. 46, 59th Cong., 1st Sess.,

p. 58.

5 Act to Establish a Bureau of Immigration and Naturalization, 34 Stat. 596, §§ 3 and 15; Nationality Act of 1940, 54 Stat. 1137, §§ 301 and 338.

BINDCZYCK v. FINUCANE. 76

REED, J., dissenting.

or § 338 of the present Act, the Congress intended to affect the power which state and federal courts have to grant new trials or rehearings or to set aside orders during a term or within such other limited time as statute or practice may prescribe. Section 338 in. providing a method for "revoking and setting aside" the order and "canceling the certificate" of naturalization refers to the method of overturning a judgment of naturalization after the judicial procedure required for the grant is at an end.

Section 338, in our view, covers only those new cases where circumstances call for the Government, in the words of the section "to institute proceedings in any court specified in subsection (a) of section 301 [54 Stat. 1140] in the judicial district in which the naturalized citizen may reside at the time of bringing suit." Under subsec- tion (b) of § 338 the defendant is to "make answer to the petition of the United States." This language is aimed at new litigation, not at steps in a pending case.' Action on judgments during term time is a step in a pending

7

case.

The certificate of naturalization, as evidence of citizen- ship, is issued when the judge signs the order. 8 CFR (1949 ed.) § 377.1. A successful appeal by the Govern- ment from an order of naturalization would result. in can-

"It does not follow that Congress may not authorize a direct attack upon certificates of citizenship in an .independent proceeding such as is authorized by § 15 of the act of 1906." Compare also United States v. Ness, 245 U. S. 319, 326, where the Court speaks,

1

of § 15 as affording a remedy by "independent suit."

"Knowing that the court had full power during the term to vacate its own decree, he took these leases subject to the poseibility of such vacating of the decree." Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25, 40; Goddard v. Ordway, 101 U. S. 745, 749- 751; Zimmern v. United States, .298 U. S. 167. See Eddy v. Sum- mers, 183 Md. 683, 687, 39 A. 2d 812, 814.

REED, J., dissenting.

cellation of an issued certificate.

It is settled law, how- ever. that appeals are allowable from federal and state cotirts. Tutun v. United States, 270 U. S. 568, 575, note 3, 580. This conclusion was reached in the face of the arguments there advanced that "exclusive jurisdiction" was conferred on the trial courts by the Act and that a means of review was granted to the United States by § 15.

The reason which led this Court to allow appeals under the Naturalization Act was the same reason that should guide us here, that is, "A denial of a review in naturaliza- tion cases would engraft an exception upon an otherwise universal rule." P. 579; see pp. 578-580.

The ruling in the Tutun case compels a distinction sought to be made in today's opinion. The Court now holds that "§ 338 is the exclusive procedure for canceling citizenship on the score of fraudulenm or illegal procure- ment based on evidence outside the record." Since Tutun sustained review that would on appeal set aside natural- ization orders and cancel certificates on facts of record, the judgment today differentiates that case by making the existence of facts dehors the record, at least where they amount to fraud or illegal procurement, the decisive incident to bar state action on rehearing for newly dis- covered evidence. We think today's decision departs from the reasoning of the Tutun case and engrafts "an exception upon an otherwise universal rule."

The certainty that naturalization may be revoked by appeal determines another point. There is a suggestion in the Court's opinion, not elaborated, that Congress in- tended to bar state action for rehearing or vacation during term on facts dehors the record because to do otherwise "would gratuitously abandon the constitutional mandate to establish 'an uniform Rule of Naturalization.' " To allow procedure to be determined according to the par- ticular court that the alien might utilize would not violate

BINDCZYCK v. FINUCANE. 76

REED, J., dissenting.

the principle of uniformity.' That is the kind of uni- formity that the Tutun case approves by impliedly allowing appeals under state procedure.

Interpretation of a statute by government officials charged with its administration carries weight.' A prac- tice under that interpretation increases its importance.

Apparently the Government avails itself of the local methods of directly attacking a judgment of naturaliza- tion within the term, or within limited periods under this appropriate Bindczyck case the Service, thus makes clear its under- standing that § 338 does not limit the power of courts over judgments during term time.

rules."0 The Government, and in

When we consider that Congress was concerned with preventing fraud and illegal practices in naturalization, It disre- the Court's conclusion does not seem justified. gards well-established principles of statutory construc- tion, without furthering the congressional purpose, and puts a -useless burden on the Government without any to the naturalized citizen. Such a ultimate benefit formalistic approach to legal problems is not helpful to the administration of justice.

We think the judgment should be affirmed.

8 Hanover National Bank v. Moyses, 186 U. S. 181, 189; Wright

v. Vinton Bank, 300 U. S. 440, 463, n. 7; Fernandez v. Wiener. 326

9 Cf. United States v. American Trucking Assns., 310 U. S. 534, 545. lo See, e. g., Petitioh of Weltzien, 68 F. Supp. 1000; United States

ex rel. Volpe A. Jordan, 161 F. 2d 390.