106
FEDERAL REPORTER.
the cross-bill was injunctive, and in respect to the operation of the mine in the disputed territory; but where this cross-bill proceeds, as this does, and as it of right may do, setting up new matter, to ask affirmative relief in the way of a decree for a specific performance, .that is something so independent in its nature that it may be, and upon application of the complainants in the cross-bill shoUld be, retained for hearing and decree. I do not, of course, mean to say that by the cross-bill, as is also attempted in this case, you can introduce matter foreign to the subjectmatter of the original bill, and for that litigate; for I understand the cross-bill must be connected with the subject-matter of the original bill, and that alone. In respeot· to the original bill there has been no formal entry, hut counsel declare it should be, and so it will be entered, "Complainants dismiss bill, and cross-bill retained for hearing and deoree."
CHARLES GREEN'S SON
and others
iJ.· SALAS.
(Gircuit Oourt, 8. D.Georgia, 1!l. D. lune 4, 1887.)
L
ALIEN-PREs'o1a'TION AS TO STATUS.
2. 8.
The original BtatuB of an alien is presumed to continue until the contrary be shown.
SAME-NATUlULIZATION.
The naturalization of an alien as a citizen of the United S,tates is strictly a judicial aot. The action of the court must be entered of record as its judgment, and, if valid, it is final and closes inquiry. In the absence of proof of the loss or destruction of' a record, the record can be proved only by the reoord itself, pr by an extraot therefrom.
RECORDS-PROOF OF.
4.
NATURALIZATION-EvIDENCE OF.'
The certificate of the clerk of the district court, reciting that the applicant has been duly. admitted to citizenship, but failing to show or verify any extract from the record, or minute of the action of the court, is not competent evidence to show naturalization.
5.
SAME-RECORD OF PROCEEDINGS.
The act of congress, Apri114, 1802,(2 St. at Large 154,) expressly requires the record of proceedings for naturalization to be recorded; and the rule that the record of, the action of the court. in passing on the application, must be produced or accounted for, has Dot been departed from ina decided case. Where a court recites its own proceedings, unerring verity is attributed by the law to the record.
6.
RECORD-PRESUMPTIONS.
'1. 8. 9.
SAM!l-DEFECTIVE RECORD.
The record, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the court where the judgment was pronounced. Naturalization cannot be proved by parol.
NATURALIZATION-PAROL PROOF. SAME-ExpATRIATiON.
In this country expatriation is a fundamental right. The domicile of birth easily reverts,and a very short residence, with the intention to regain the original domicile, issuftlcient. A native of a foreign government may reas-
CHARL:E:S
SON 'D.
SALAS.
107
sume his original citizenship, under such conditions as the government of hiR' birth may require. The fact of expatriation is to be proved by any fact that will convince the jUdgment. 10. SAME-ORDER OF FOmiIGN GOVERNMENT.
The authenticity of his order being admitted, the courts of the United States must presume that the Captain General and Governor of Cuba. possessing a high executive and superintending control, acted on this occasion with legitimate authority, and that he had sufficient evidence to satisfy him of Spanish domicile; and the defendant, haVing asserted such domicile before the Spanish authorities, will not now be heard to deny it. _' A court of the United States will not recognize. as a citizen of this government,one foreign born, who deliberately renounces his citizenship here, and who places himself under the dominion of another government, and who for 18 years has held himself out to all men as an alien, even though he may have imposed on the other p;ovarnment to obtain anew his citizenship there.
11.
SAME-FOREIGN NATURALIZATION THROUGH FRAUD.
(8,IUabu81J,Ith6 Court.)
Charlton &: MackaUand Ohi8holm &: Erwin, for complainants. Denmark &: Adams, George A. Mercer, and S. Yates Levy, for defendant. SPEER, J. A plea to the jurisdiction has been filed, averring that Ramon Salas, the defendant, is not, as alleged in the bill, a Spanish subject, and an alien, but that he is a citizen of the United States of America, and of the state of Georgia, where the complainants also reside. The complainants took issue with the. averments of the plea, and both parties have been fully heard. Premising that it is admitted that the defendant, Salas, is an alien by birth, and a subject of Spain, his original statua is presumed to continue until the contrary be shown. Hauenstein v. liynham, 100 U. S. 483. The first inquiry is" waS Ramon Salas in fact" admitted to become" a citizen of the United States in the manner prescribed by law,and has he furnished competent and sufficient proof of his naturalization? Secondly, if his naturalization as an American citizen has been effected legally, has he since then expatriated himself as an American citizen, and "redintegrated" himself as a Spanish subject? It may be considered as settled that the naturalization of an alien, as a citizen of the United States, is a judicial act, and it follows to be effective, it must be done by a court of competent jurisdiction. Chief Justice MARSHALL in Spratt v. Spratt, 4 Pet. 406, states the principle in this langua,ge: . "The various acts upon the subject submit the decision on the rights of aliens to admission as citizens to courts of record; they are to receive testimony. compare it with the law, and to judge on both law and fact. This jUdgment is entered on record as the judgment of the court,-it seems to us, if it be in legal form, to close all inquiry; and, like every other jUdgment, to be complete evidence of its own validity." See, also, In re Coleman, 15 Blatchf. 420. The courts of New York have had ample experience with questions of naturalization, and In re an Alien, 7 Hill, 137, a supreme court of that state announces: "The application must be supported by legal proof of the facts on which it rests. The proceedings ate strictly judicial. .The alien who applies for ad-
mission asserts a compliance on his part with the prescribed conditions, and he must furnish tbe requisite proof of what be so alleges, or be establishes no right."
The Acorn, 2 Abb. 444. Of naturalization, then, there IDust be, as in other judicial matters, that judgment which is "the end of the law," which 1\11'. Justice Blackstone declares is "the decision or'sentence of the law announced by a court, or other competent tribunal, upon the matter contained in the record," (3 Bl. Comm. 395;) which my Lord Coke pronounces the "very voyce of law and right." Now, how is this judgment shown? In the nature of things, it must b,e a matter of record. by its dockets, minutes, or records. Where there is A no record there is no judgment. Plant v. Gunn, 2 Woods, 378. The to show his admission to citizenship, relies upon the certificate of 'the clerk of the district court of South Caroliha, which is as follows: "THE UNITED STATES OF AMERJOA, SOUTH CAROLINA DISTRIOT· ..'J'o all Whom, these Presents may Game, Greeting: Wbereas at a federal district court, held at Charleston, under the jurisdiction of the United States of America, on the fourteenth day of January, Anno ])omini one thousand eight hundred and fifty-seven, and the eighty-first year of the sovereignty and independence of the said states, Ramon Salas, late of Sabadell, Spain, aged thirty-six years, came into the said court, and made application to be made a citizen of these our said states; and having complied with all the conditions and requisites of the acts of congress in such case made and provided, for establishing a uniform mode of naturalization; and the oath to support the constitution of the United States of America, and to renounce all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, being administered unto him in open court before the Honorable A. G. MAGRATH, U. S. judge of said district,-the said Ramon Salas is by virtue thereof, and the premises, declared and enrolled a citizen of the said states. "In testimony whereof I have affixed the seal of the said court to these presents, at Charleston, in the district aforesaid, on the day and year above written. H. Y. GRAY, U. S. Dist. Clerk. S. C. D. "Janttary 14, 1857." Also on a book purporting to be a register of the names of aliens admitted to citizenship by the "federal courts" in South Caro,lina, on which the applicant's name appears. This was called "The Book of Aliens." The minutes of the court were placed in evidence, and from them it appears that the district court oithe United States for the district of South Carolina was not in session on the fourteenth day of January, 1857, the date of the alleged admission of Mr. Salas. There is no application, oath, or other record relating to this transaction; but the defendant testifies, subject to objection to evidence by parol, that he took an oath or oaths, how many he does not remember, or before whom taken. From the minutes, it appears that it was the practice of the district court of South Carolina, in cases of admission to citizenship, to pass an order, which was recorded by the clerk. The "Book of Aliens" contained names of aliens admitted in the federal courts; in the state courts; ul1d.e.
CHARLP;S GID;EN'S
v. . ALAS. S
109
treaties; and also a class. of persons who were ndmittedas denizens. It does not appear to be a naturalization docket of the district court. It is a matter of interest and importance to determine whether these records, if they are entitled to that designation, have such weight as evidence that it will be fairly inferable fromthetn that there was dicial action upon this application for citizenship. In other words, was there. a judgment admitting Ramon Salas to American citizenship? In the absence of proof of the loss or destruction of a record,-and there is no pertinent proof on that subject here,-,-themethQd of proving the record is by the productioIl of the record itself, or an extract from it. The certificate of the clerk in evidence is neither such record, nor such extract. It is a recital of what the clerk,thinks has been dQne.Now, the verity and importance which is attributable to the dertificate of thecler-k is not because he is the clerk, but because he has aCCesS to the records, is their custodian, and is presumed tofaitbfully transcribe and to truly certify extracts therefrom. The case of Miller v. Reinhart, 18 Ga. 239, ill ..precisely in point. This waSil; question of naturalization, where the certificate was:' "STATE OF GEORGIA, CHATHAM CoUNTY, UNITlW STATES OF AMERlOA'. clerk of said court, do hereby certify and make knowntbat at a superior court held at Sava.nnah, in !loud for the county aforesaid, 'before the Honorable WILLIAM: B. FLEMING, Esq., jndge of said court, day of January,,1855, James M. Reinhart, an alien and subJect of the .king of many. the court to be admitted a citizen; and having in all things complied with the law in such calle made and prOVided. the said James M. Reinhart was accordingly admitted a citizen of the United States of America, having first taken and subscribed in open court the oath of naturalization. "Given under my hand and seal. etc. J. F. GUILM:ARTIN, Clerk." The court held that tbis certificate was not sufficient to show that JamesM. Reinhart was naturalized. The reasoning of Judge BF<NNING, who delivered the opinion, seems unanswerable. "Proceedings of ralization have to be recorded,-' which proceedings shall be recorded by the clerk of the court,' is the language of the act of congress on the subject. 2 Story, Laws U. S. 851. This certificate does not give the words of any part of the record. The certificate seems to be a statem.ent of what, in the clerk's opinio!!, is the legal import or effect of the different particulars of which the record may consist. Weare to consider this certifica.te insufficient, and the decision admitting.it roneous; for this certificate gives a copy of the judgment, nor of any other part of the record." In Lansing v. RuBBell, 3 Barb·. Oh. 325, the court of chancery of New York holds that" the certificate of the clerk of a court is not evidence of the existence ora judgment, except in those eases where it is made evidence by statute; and, independent of any statutory provision, the proper way to prove the existence of a judgment is by the production of. the record itself, Of of an exemplification thereof, or of a copy of such record." "In the Superior COu.rt of Chatham County. "TO 'all·' Whom .these Presents may Come, Greeting: tJolin F Guilmartm,
1:1:0
,
FEDE:RAL lUBPORTER.
: It does' not appear that there is'anystatutory provision authorizing such a certificate as this as evidence of· naturalization. In section second of the act of congress to establish a uniform rule of. naturalization, which became the law April 14, 1802, (2 St. at Large, 154,)a certificate of the applicant's registry and report for naturalization is provided for, but this certificate wassiinply to be exhibited as evidence to the court to which the subsequent application for naturalization was to be presented. This act, in section first,idso requires, not only that the clerk shall record all proceedings of the application for naturalization, but also that the preliminary report and registry shall be recorded. The record was therefore of first importance. The act of March 22, 1816, (3 ,St. at Large, 258,) makes it necessary to recite this certificate of report and registry in the record of the court admitting the alien.' This is repealed. 4 St. at Large, 310. The certificate referred to in the thirteenth section of the act of 1813 is a "certified copy of the act by which the alien shall have been naturalized." This necessarily is the order of the court, or an extract therefrom. I have examined with carefulness every case cited upon the elaborate brief of the. solicitors for defendant, but I find nowhere a departure from the rule that the record .must 1,>e produced or accounted for. In Campbell v. (Jordon, 6 Cranch, 176, relied on by defendants, there was produced;' not only the certificate of the clerk, but the minutes of the court; and t1;lis view of that decision is entertained by the supreme court of Georgia in Miller. v.Rei/nltart, 8upm. Besides, the certificate had appended ;to it these words: "A copy. Teste: JOHN C. LITTLEJ.>AGE,"-wholtappeared otherwise in evidence was the clerk. , The certificate in Re Blatchf. 406, 432, began, "Be it remembered," and!3nded, "By the court. JAMES M. SWEENEY, Clerk." Here, too, theoa.th was in, the record, the original applicatIOn was on file, and the initials of the judge, in his own handwriting, were written across the paper. This was judicial action. The court in that case does not, as insisted by counsel for defendant, hold that no order of admission wasnacessary, but simply that the entries made by the judge were regarded by the judge as an order, and would be considered as such, and the certificate, with the words "By the Court," was sufficient to show that the court really acted. Here, however, not only does it ·fail:to appear that there was anyactioll by the court, but it does affirmatively appear that there was no 'court in session at the time when Salas .insists he waS admitted. Whenever a <:lourt attests its own proceedings and acts, unerring verity is attributed by the law to the record, Quod pe:r recordum probatum, non deJJet esae nega:tuni. The minutes show that the court was adjourned on the eighth daydf December, 18.56, .until the third Monday, which was the,nineteenth day January, 1857. The adjournment is recorded on page 185 oHM minutes, and the record of the transactions of the nine-teetlth January Bire recorded on the nextpage, and on 'the other side of the sameJeaJ.· .How then can it be said that on the fourteenth day of January the defendant was made a citizen by the court?
,. CHARLES
GREEN'S SON
V.
111
Nor is itcornpeoont to supply alleged deficiencies in the record by paro: evidence. The reoord, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the COl1rt where the judgment was pronounced. Freem. JudgD). § 38; Bigelow, Estop. 34·..Naturalization cannot be proved by parol. Slade v. Minor, 2 Crallch, C. C.139; Dryden v. Swinburne, 20 W. Va. 89; 18 U. S. Dig. (N. S.) 18. Were the record and the evidence of that character that the court could hold that Mr. Salas had ever become an American citizen, it is evident since then he has renounced his allegiance to this government, and bas been redintegrated as a subject of the Spanish king. In 1869,Mr. S&las executed in writing a for.mal renunciation of all his rights and privileges as an American citizen. He pasted it on his certificate of naturalization, and filed both with the clerk who issued the certificate. He had spent all that troublous period of .t\.merican history,betweeu 1861 and 1865inclusive, iu foreign parts, mainly in Spain, the country of his origin, but he returne\i to this country in 1865. '. NevertheleSs, on ,the twentieth day of July, Captain General of Cuba, his exilellency, Don Antonio Caballero Y Fernandez de Rodas, issued, on the application of Mr. SallIS, the following prcYf//wnciamento: "In the city of Habana, the twentieth July, of 1869,hisexce;llency, Antonio (,1aballero Y Fernandez de Bollas, captain general, militarY,and political f!?.()vernor general, of the ever faithful island of Cuba, president of its council of administration, etc., said that, in virtue of the petition of Mr. Ramon Salas, the .of Mont Blanc, native of Sabadell, province ofl3,arcelona, .Apostolic and Roman Catholic religion, married, residing in the city of Matanzas, his profession commerce, 40 years of age, and who, after having obtained letters of American naturalization, petitions now to regain again his Spanish naturalization, in .virtue of the information annexed to the petition, making evident the good antecedents, IDoral anil political, of Mr. Salas; also his stay. of m,my years in this country,-shOlllddEiclare, and did declare, in favor of the aforesaid Mr. Ramon Salas, of Mont Blanc, all the rights of. naturalization, so that henceforth he may enjoy them in accordance with what is 21,1817; and to that effect a copy of prescribed by the royal order of the present shall"be issued to serve bim as his letters of naturalization, he to apply with same to the corresponding offices oUhe government; also to those .of the city council, for the purpQse of being reeol'lied. "In testimony whereof I sign the present. .. ANTONIO CABALLERO-FRANCO DE CASTRO." [Signed]. The authenticity of this record is unquestionable, and Mr. Salas a.vpws his participation in this application to the captain general" and states that he intended to become a Spanish citizel,l, that he regarded himself ,as such, and would have lived, and no doubt have died, imbued with the spirit of fealty to his most Catholic majesty, but for the.fact that his ilOunsel.assuredhim that he was an American. Mr. Salas comported himself asa (iutiful and submissive subject of Spain for about eighteen the king of Italy, years after this renewal of Spanish allegiance. N nor the authorities of Uruguay or Peru, could inQuce him to hold their .eonsulshipsuntil. he had asked permission of the king of had issued from theES(lorialthe following stately IUanifeE,lto:
112
" The minister of the interior says to the state department, under date of twenty-eighth December last, as follows : For informa,tion it has been remitted to the council of state of this department the petition of Mr. Ramon Salas, native of Sabadell, Barcelona, and a resident of Savannah, U. S., soliciting autho;ritj to perform the'duties of consular agent of Italy, vice-consul of the Uruguay Republic, and consul of Peru, without losing the rights of Spanish ·citizen, tJ:J,e above-mentioned· council of state has emitted the following opinion: In accordance with the royal order of twenty-third October last, the council of state has examined the petition herllwith inclosed, ad):>1. him to the minister under dressed to tnt\ minister of ,your charge, wllerewith Mr. Ralll.0n Salas,. native of Sabadell, province of Barcelona, and resident of Savannab,U. S., in which place he fulfills honor·a.bly, for some time, the offices of 'consulat agent of Italy, vice-consul of the Uruguay Re,Public, and of CODstilof Perul asks for to continue holding saia offices" without,l{)sing the rights of. a Spaniard, which authority he has not askedjbefore now, beclj.9sEl, in his long stay abroad, he was. not aware that,. in acCordaJ;lce With the. constitlltion of his country, he reqqired of our present constitution really says that the rights of: a Spaniard are 'lost by accepting empl0)1nent' from other governIiiellts without first receiVing :permission from the king. Therefore, rigidly speakihg, Mr. Ramon Salas' cannot be co.nsidereda Spanish subject, in virtue of his,baviIig aCcepted. without authority, his present eonsular employment; but as ill his petition lie reveals the noble :p.esire of preserving our .nationality,: alSo. his i,ntention of ooaling the laws now ruling in Spain, the aforesaid Cbuncil.of' state is of that, by dispensing to Salas the omissi(jn above the authority s.olicited may be granted to him. Your.excellency will, resolve with his majesty whatever you mliydeem best; and his majesty;'the king. having resolved in conformity with the above-mentioned opinion "I have the honor to transmit same to your excellency; to.theopportune effects; of which I transmit now to you by .order ot the minister of state, in reply to your petition dated sixth October
last. ..' .. ' . , "Giyen in PalMe the seventh day of January, 1879. "The subscribirlg minister of state, '. [Signed] . . "RAFAEL FERRAZ. "To Mr. Ramon Salas. Madrid.-
Mr. Salas filed. the Spanish copy of this document with the consul of Spain, in Savannah, as notice to all the world that he was a Spaniard. and not a free American citizen. who will acknowledge neither king nor kaise;r. . ,.., ." ',, . But it is said that Mr. Salas did not change his residence, and for that reason did not change his domicile, and without a change of domicile there can be no expatriation. It is true, however, that the domicile of birth easlIy reverts, and a very short. residence with the intention to change 'is sufficient, but long continued residence, without such intention,is'insufficient, (Myers, Fed. Dec. 505, and the authorities there cited;) and a native of a foreign country may reassume his original citizenship under such conditioneRS the authorities of his government require. 9 Op.Attys. Gen. 62. The fact of expatriation is to be 'Proved like any other fact for which there is no prescribed form of proof; that is, by any evidence that will convince the judgment. Id. See, also, The Venus, 8 Cranch, 280; 14 Op. Attys. Gen. 295. In this country expa-
HOLMES V. CITY OF SHREVEPORT.
113
triation is a fundamental right. Stoughton v. Taylor, 2 Paine, 661; Rev. St. § 1999.' The moment a foreign domicile is abandoned the nativedomicile is reacquired. There can be little doubt that the captain general of Cuba had sufficient evidence before him to satisfy him of a residence there by Mr. Salas, which, taken with his declared intention to renew his allegiance, would make him a subject of Spain. The genuineness of the letters of natutalization issued by the captain general of Cuba is not controverted. This being true, it follows that inasmuch as be was governor of theisland,possessing a high executive and superintending control, we must presume tbat he acted on tbis occasion with legitimate authority. Bingham ·v. Gabbot, 3 Dall. 39; U. S. v. Reading, 18 How. 13. N6r do Tthink that Mr. Salas can be heard when he avows that he did. notehange his doinicile. If, in truth, he did not, he certainly imposed upon tbe Spanish authorities, and" Ne:rno aUeganslfUam turpitudinem, audiendttsest." It is insisted by counsel for defendant that the complainants here were neither parties nor privies to this action of the defendant, and they are ill no wise interested in the defendant's conduct, and cannot insist that heia estopped from denying bis Spanish citizenship. The court, bowever"representing in a degree the dignity of American citizenship, and empowered to adjudicate its own jurisdiction, will not recognize as an American one who deliberately renouncesbis citizenship here, and who places himself under the dominion of another government, and for 18 years bas held himself out to all men as an alien. On both grounds, therefore, the plea is overruled; and the court, having jurisdiction of suits to which aliens are parties, will entertain it here.
(Oircuit Oourt,
w: lJ. Loui8iana.
1887.)
MUNICIPAL CORPORATIONS-PuBLIC IMPROVEMENTS-BONDs-BONA FIDE CHAsBR-PRINCIPAL AND AGENT.
PuR-
The defendant city, being authorized by its charter to contract for certain public works, agreed to pay to certain contractors one-half cash, and the balance in 10'year coupon bonds, for performing said works. A number of such bonds were issued III pursuance of said agreement, and this suit was brought l:!y persons to whom these bonds before their maturity were transferred. Held, that the officials of a inunicipal corporation, which is vested with the usual powers of such bodies, are authorized to· issue bonds or promissory notes to evidence the credit price of any works for which they are authorized to contract, which, in the hands of a bona fide holder, will be protected by the law-merchant; that the express authority in an agent to buy, provide for, or procure a thing for his principal, carries with it the implied power to give the latter's negotiable note for the price of the thing, and that this rule of law applies to the officials or agents of such corporations. (SyllabUS by the Oourt.)
At Law. A. H. Leonard and A. D. Land, for plaintiff. Alexander « Blanchard and E. H. Randolph, for defendant. v.31F.no.3-8