Zartarian v. Billings

Syllabus.

have denied to the Ohio Valley Bank after this transaction the rights and privileges of a stockholder.

As we have seen, this court in construing the banking act has not limited the liability to the registered stockholders.

While the registered stockholders may be held liable to credi- tors regardless of the true ownership of the stock, and the pledgee of the stock not appearing otherwise, is not liable, although the registered stockholder may be an irresponsible person of his choice, yet where the real ownership of the stock is in one his liability may be established, notwithstanding the registered ownership is in the name of a person fictitious or otherwise, who holds for him.

We think the Circuit Court of Appeals did not err in hold- ing the bank, in view of the facts shown in the case, as the true owner and responsible shareholder of' the stock in question.

Judgment affirmed.

No. 120. Submitted December 7, 1906.-Decided January 7, 1907.

Naturalization acts of the United States have limited admission to citizen-

ship to those within its limits, and under its jurisdiction.

An alien's.right to acquire citizenship is purely statutory, and extension of the effect of naturalization to minor children of the person naturalized not included in the statute must come from Congressional legislation and uot judicial decision.

Section 2172, Rev Stat., and the naturalization laws of the United States, do -not confer citizenship on the minor children of a naturalized alien who were born abroad and remain abroad until after their parent's naturalization, such children are aliens, subject as to their entrance to the United States to .the provisions of the Alien Immigration Act of March 3, 1903, 32 Stat. 1213, and may be excluded if afflicted with contagious disease.

Opinion of the Court.

THE facts are stated in the opinion.

If the girl was not an alien within the intent and meaning of the act of March 3, 1903, the commissioner had no authority to detain or deport her, and the final order of the Circuit Court must be reversed. Gonzales v. Williams, 192 U. S. 1.

The question raised above as to citizenship or status is purely one of law. As there is no dispute as to the facts, United States v. Ju Toy, 198 U. S. 253, does not govern. The question passed on in that case by the Secretary of Commerce and Labor was in reality as to the place of birth of the petitioner, a ques- tion of fact, anid the court, by a majority opinion, held that the decision of such an executive officer on a question of fact was final.

The said Mariam, or her mother in her behalf, had done every- thing possible to abandon her foreign allegiance in order to assume the rights incident to her father's status as an American citizen, and was within the intent and meaning of § 2174, Rev.

Stat. See, also, Boyd v. Nebraska, 143 U. S. 178.

Having submitted to the allegiance of the United States at the implied invitation of that government, she cannot be re- garded as an alien. Gonzales v. Williams, supra.

Under Rev. Stats. § 2172, if the child Mariam had landed and resided in the country a few weeks, or perhaps days, it would appear that she could maintain a claim to be regarded as a citizen by virtue of her father's naturalization. See Ruling of Dep. of State, For. Rel. 1881, p. 53; also 1885, pp. 395, 396.

Mr. Alford W. Cooley, Assistant Attorney General, for ap- pellee.

MR. JUSTICE DAY delivered the opinion of the court.

This i s an appeal from an order of the Circuit Court of the United States for the District of Massachusetts, denying a pe-

Opinion of the Court.

tition for a writ of habeas corpus filed by Charles Zartarian in behalf of Mariam Zartarian, his (laughter, who, it was alleged, was unlawfully imprisoned, detained and restrained of her liberty at Boston by the United States Commissioner of Immi- gration, which imprisonment was alleged to have been in viola- tion of the constitutional rights of the said Mariam Zartarian, without due process of law and contrary to the provisions of section 2172 of the 'Revised Statutes of the United States, which section, it is alleged, made said Mariam a citizen of the United States by virtue of the citizenship of her father, the petitioner.

The United States District Attorney and the attorney for

The petitioner, Charles Zartarian, formerly a subject of the Sultan of Turkey, became a naturalized citizen of the United States on September 12, 1896, at the Circuit Court of Cook County in the State of Illinois. That his daughter Mariam, on whose behalf this petition is brought, is a girl between fifteen and sixteen years of age, and was born just prior to the peti- tioner leaving Turkey. That in the latter part of the year 1904 the Turkish Government, at the request of the United States Minister at 'Constantinople, granted permission to the peti- tioner's wife, minor son, and his said daughter, Mariam, to emigrate to the United States, it being stipulated in the pass- port issued to them that they could never return to Turkey.

That on March 22, 1905, the Hon. G. V. L. Meyer, then United States Ambassador at Rome, Italy, issued a United States pass- port to your petitioner's said wife- and daughter. That said Mariam arrived at Boston from Naples, Italy, on April 18, 1905, and that on April 18, 1905, she was found to have trachoma, and was debarred from landing by a board of special inquiry appointed by the United States Commissioner of Immigration for the port of Boston."

The petitioner's child, Mariam Zartarian, was debarred from lending at the port of Boston under the provisions of the act of March 3, 1903, chap. 1012; 32 Stat. 1213, U. S. Com. Stat.

ZARTARIAN v. BILLINGS.

Opinion of the Court.

1901, Supp. of 1903, p. 170, entitled "An act to regulate the immigration of aliens into the United States."

Section 2 of that act, among other things, provides that certain classes of aliens shall be excluded from admission to the United States, including " persons afflicted with .a loathsome or with a dangerous contagious disease." Upon the finding of the board of inquiry that said Mariam had trachoma, she was debarred from landing.

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The contention is that she does not come within the terms of this statute, not being an alien, but entitled to be considered a citizen of the United States, under the provisions of section 2172 of the Revised Statutes, which provides: "The children of persons who have been duly naturalized under any law of being under the age of twenty-one the United States years at the time of naturalization of their parents, shall, if dwellingjn the United States, be considered as citizens thereof."

As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of Congress, for, wanting native birth, she can not otherwise become a citizen of the United States.

Her right to citizenship, if any she has, is the creation of Con- gress, exercising the power over this subject conferred by the Constituti6n. United States v. Wong Kim Ark, 169 U. S. 649, 702.

The relevant section, 2172, which it is maintained confers the right of citizenship, is the culmination of a number of acts on the subject passed by Congress from the earliest period of the Government. Their history will be found in vol. 3, Moore's International Law Digest, p. 467.

Section 2172 is practically the same as the act of April 14,

. "The children of persons duly naturalized under any of the . being under the age of 21 laws of the United States years at the time of their parents being so naturalized shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who are now

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Opinion of the Court.

or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be con- Sidered citizens of the United States."

In Campbell v. Gordon, 6 Cranch, 176, it was held that this act conferred citizenship upon the daughter of an alien nat- uralized under the act of January 29, 1795, she being in this country at the time of the passage of the act of April 14, 1802, and then "dwelling in the United States."

The act has also been held to be prospective in its operation and to include children of aliens naturalized after its passage, when "dwelling in the United States." Boyd v. Thayer, 143

The construction of this law and the meaning of the phrase "dwelling in the United States" has been the subject of much cohsideration in the executive department of the Government having to do with the admission of foreigners and the rights of alleged naturalized citizens of the United States. The rulings of the State Department are collected in Prof. Moore's Digest of International Law, vol. 3, pp. 467 et seq.

The department seems to have followed a rule established at an early period, and formulated with fullness in Foreign Relations for 1890, p. 301, in an instruction from Mr. Blaine to Minister Phelps, at Berlin, in which it was laid down that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child if, at the time of the father's naturalization," dwelling within the judrisdiction of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority..

Whether, in the latter case, a child not within the jurisdiction of the United States at the time of the parents' naturalization, but coming therein during minority, acquires citizenship is not a question -now before us.

The limitation to children "dwelling in the United States" was -doubtless inserted in recognition of the principle that citizenship. canot be conferred by the United States on the citizens of another country when under such foreign jurisdic-

Opinion of the Court.

tion; and is also in deference to the right of independent sov- ereignties to fix the allegiance of those born within'their do- minions, having regard to the principle of the common. law which permits a sovereignty to claim, witb certain exceptions, the citizenship of those born within its tlrritory.

It is pointed out by Mr. Justice Gray, delivering the opinion in United States v. Wong Kim Ark, 169 U. S. 649, 686, that the naturalization acts of the United States have been careful to limit admission to citizenship to those "within the limits and under the jurisdiction of the United States."

The right of aliens to acquire citizenship is purely statutory; and the petitioner's child having been born and remained abroad, clearly does not come within the terms of the statute.

She was debarred from entering the United States by the action of the authorized officials, and, never having legally landed, of course could not have dwelt within the United States.

Nishimura Ekiu v. United States, 142 U. S. 651.

It is urged that this seems a harsh application of the law, but if the terms of the statute are to be extended to include children of a naturalized -citizen who have never dwelt in the United States, such action must come from legislation of Con- gress and not judicial decision. Congress has made provision concerning an alien's wife or minor child suffering from con- tagious. disease, when such alien has made a declaration of his intention to become a citizen, and when such disease was con- tracted on board the ship in which they came, holding them under regulations of the Secretary of the Treasury until it shall be determined whether the disorder will be easily curable, or whether such wife or child can be permitted to land without danger to other persons, requiring that they shall not be de- ported until such facts are ascertained (32 Stat. 1221, U. S.

Comp. Stat. 1901, Supp. of 1903, p. 185). But Congress has not said that an alien child who has never dwelt in the United States, coming to join a naturalized parent, may land -When afflicted with a dangerous contagious disease.

As this subject is entirely within Congressional control, the

Syllabus.

matter must rest there; it is only for the courts to apply the law as they fifnd it.

It is suggested that the agreed finding of facts contains no stipulation as to the dangerous or contagious'quality of tra- choma, but the petition shows that the petitioner's daughter was debarred from landing because it was found that she had a dangerous contagious disease, to wit, trachoma. Further- more, the statute makes the finding of the board of inquiry final, so far as review by the courts is concerned, the only appeal being to certain officers of the department. 32 Stat. 1213; Nishimura Ekiu v. United States, 142 U. S. 651.

Finding no error in the order of the Circuit Court, it is Affirmed.

No. 133. Submitted December 14, 1906.-Decided January 7, 1907.

Where the Circuit Court refuses to. remand, and on the plaintiff declining to recognize its jurisdiction or proceed, dismisses the case and renders judgment that plaintiff take nothing thereby and defendant go hence without day and recover his costs, the judgment is final, so far as that suit is concerned, and the question of jurisdiction can be certified to this court under § 5 of the act of March 3, 1891, 26 Stat. 827.

The right, of a non-resident defendant, sued in the state court by an em- ploy6 for damages, to remove the case to the Federal court cannot be defeated by the fraudulent joinder as co-defendant of another employd, resident of plaintiff's State, who has no relation to the plaintiff, render- ing him liable for the injuries, and the Circuit Court can determine the question of fraudulent joinder on affidavits annexed to the non-resideqt defendant's petition for removal to the consideration whereof plaintiff does not object but submits affidavits counter thereto. Alabama Great Southern Railway Co. v. Thompson, 200 U. S. 206, distinguished.