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contains no allegation of fraud, and the silence of the findings may rightly be taken as showing that none was proved. The findings fully respond to the issues presented by the pleadings, and, we think, sustain the judgment. Judgment affirmed.

JOHANNESSEN v. UNITED STATES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 230. Submitted April 22, 1912.-Decided May 27, 1912.

Prior decisions of this court holding that a judgment of a competent court admitting a person to citizenship is, like every other judgment, competent evidence of its own validity, go no further than protecting the judgment from collateral attack.

Congress may authorize direct proceedings to attack certificates of citizenship on the ground of fraud and illegality; and § 15 of the act of June 29, 1906, 34 Stat. 596, 601, c. 3592, providing for such cases, is a valid exercise of the power of Congress under Art. I, § 8 of the Constitution of the United States.

The foundation of the doctrine of res judicata or estoppel by judgment

is that both parties have had their day in court, Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48; and where a certificate of naturalization was issued without the Government appearing there is no estoppel against it, nor is such a certificate conclusive against the public.

Certificates of naturalization, like patents for land or inventions, when issued ex parte can be annulled for fraud.

How the judicial review of a certificate of naturalization should be conducted rests in legislative discretion.

Quare as to the conclusive effect of a certificate of naturalization issued after appearance and cross-examination by the Government. Quare: Whether, in the absence of statute such as the act of June 29, 1906, a court of equity could set aside, or restrain the use of, a certificate of naturalization.

Argument for Appellant.

225 U.S.

The act of June 29, 1906 is not unconstitutional as an exercise of judicial power by the legislative branch of the Government, nor is it unconstitutional because retrospective.

The ex post facto provision of the Constitution is confined to laws affecting punishment for crime and has no relation to retrospective legislation of any other description.

An alien has no legal or moral right to retain citizenship obtained solely by fraud, and an act permitting the cancellation of a certificate so obtained is not a punishment but simply nullifies that which the party had no right to.

THE facts, which involve the power of the court under the act of June 29, 1906, c. 3592, to cancel a certificate of naturalization on the ground that it was fraudulently issued, are stated in the opinion.

Mr. Edward J. McCutchen and Mr. Samuel Knight for appellant:

A decree of naturalization is a judgment of a court, and, therefore, subject to all the rules of law regarding judgments as such. Spratt v. Spratt, 4 Pet. 393; 2 Black, Judg., § 804; McCarthy v. Marsh, 5 N. Y. 263; The Acorn, Fed. Cas. No. 29; Charles Green's Son v. Salas, 31 Fed. Rep. 106; In re Bodek, 63 Fed. Rep. 813; Pintsch Com. Co. v. Bergin, 84 Fed. Rep. 140; Ex parte Knowles, 5 California, 300; Tinn v. United States Dist. Atty., 148 California, 773; Matter of Christern, 43 N. Y. Sup. Ct. 523; S. C., 11 Jones & Spencer, 523; Matter of Clark, 18 Barb. 444; United States v. Gleason, 78 Fed. Rep. 396; 90 Fed. Rep. 778.

A court of equity will not set aside a judgment on the ground that it is founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. United States v. Throckmorton, 98 U. S. 61; Vance v. Burbank, 101 U. S. 514; Steel v. St. Louis Smelting &c. Co., 106 U. S. 447; Moffat v. United States, 112 U. S. 24; Hilton v. Guyot, 42 Fed. Rep. 249, 252; S. C., 159 U. S. 113;

225 U.S.

Argument for the United States.

United States v. Gleason, 78 Fed. Rep. 396; S. C., 90 Fed. Rep. 778.

The act of 1906, under which it is sought to cancel defendant's certificate of citizenship, operates as an ex post facto law, and is, therefore, within the prohibition of § 9 of Art. I of the Constitution of the United States. Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221; Commonwealth v. Edwards, 39 Kentucky (9 Dana), 447; United States v. Starr, 27 Fed. Cas. No. 16,379; Green v. Shumway, 39 N. Y. 418.

If the act of June 29, 1906, authorizes the impeachment of the judgment of a coördinate court for fraud consisting of the introduction of relevant perjured testimony, it is unconstitutional as an exercise of judicial power by the legislature. Wieland v. Shillock, 24 Minnesota, 345; Roche v. Waters, 72 Maryland, 264; Re Handley's Estate, 15 Utah, 212; Cooley's Const. Lim., 6th ed., 111; 1 Black on Judgments, 298; Atkinson v. Dunlap, 50 Maine, 111; United States v. Aakervik, 180 Fed. Rep. 137; Davis v. Menasha, 21 Wisconsin, 497; State v. Flint, 61 Minnesota, 539; 63 N. W. Rep. 113.

A statute should be construed to have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. Calder v. Bull, 3 Dall. 386; Cooley's Const. Lim. 529; 8 Cyc. 1022; 28 Am. & Eng. Ency. Law, 693.

Mr. Assistant Attorney General Harr for the United States:

The last paragraph of § 15 of the act of June 29, 1906, expressly applies not only to certificates of citizenship issued under the provisions of that act, but to all certificates theretofore issued by any court under prior laws.

Under §§ 2165, 2170, Rev. Stat., the continuous residence of an alien within the United States for the requisite

Argument for the United States.

225 U.S.

length of time was, under the old law, as under the act of June 29, 1906, a matter which went to the power of the court to act. If he could not meet this requirement, the court had no jurisdiction in the premises. The contention, therefore (based on United States v. Throckmorton, 98 U. S. 61), that if, as in the present case, a court was induced to naturalize an alien by a misrepresentation of the facts as to his residence, Congress has no authority to authorize a judicial proceeding for the cancellation of his certificate of naturalization so obtained, is manifestly untenable. It amounts to saying that one could by fraud confer jurisdiction upon the courts to do that which Congress had expressly withheld from them, and which they had no power to do except by virtue of authority from Congress. United States v. Throckmorton, 98 U. S. 61, 68.

But even if Congress has no greater power to authorize proceedings to cancel a judgment of naturalization than is possessed by a court of equity with respect to ordinary judgments or decrees the Throckmorton Case is inapplicable, because that case has reference only to proceedings inter partes, and has no application to ex parte proceedings by which a grant is obtained from the Government. Moffatt v. United States, 112 U. S. 24, 32; United States v. Minor, 114 U. S. 233; United States v. Am. Bell Telephone Co., 128 U. S. 315; Hilton v. Guyot, 159 U. S. 207; United States v. Am. Bell Telephone Co., 167 U. S. 224, 240.

A naturalization proceeding (at least prior to the act of June 29, 1906, § 11, which gives the Government the right to be heard therein) was entirely ex parte. There was no contest by the Government, and no adversary proceedings. It was therefore similar in all substantial respects to an application to the Government for a patent for land.

Prior to the act of June 29, 1906, the power of the Federal court to cancel a certificate of naturalization obtained by fraud was recognized. In re McCoppin, 5

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Argument for the United States.

Saw. 630, 632; United States v. Norsch, 42 Fed. Rep. 417.

The constitutionality of the act of June 29, 1906, and the jurisdiction of the United States courts thereunder to cancel a certificate of naturalization, whether issued by a state or Federal court, where it appears that the certificate has been procured without compliance with the requirement of the law as to residence in the United States, has been sustained in the following cases: United States v. Nisbet, 168 Fed. Rep. 1005; United States v. Mansour, 170 Fed. Rep. 671; United States v. Simon, 170 Fed. Rep. 680; United States v. Meyer, 170 Fed. Rep. 983; United States v. Spohrer, 175 Fed. Rep. 440; United States v. Luria, 184 Fed. Rep. 643.

Appellant must rest entirely upon United States v. Gleason, 78 Fed. Rep. 396, affirmed, 90 Fed. Rep. 778, Judge Wallace dissenting.

In Campbell v. Gordon, 6 Cranch, 176, and Spratt v. Spratt, 4 Pet. 392, on which that decision was based held merely that a judgment of naturalization could not be collaterally attacked. Here, the issue is whether the Government, which made the grant, can authorize a direct proceeding for the purpose of having it set aside for fraud. See 3 Moore, Int. Law Dig. 500.

The view that naturalization is a judicial act because it is done by judges (United States v. Dolla, 177 Fed. Rep. 101, 105), rather than because of the nature of the act, is apparent when the nature of the act is analyzed, and is confirmed by the fact that in most countries it is performed by administrative officers. In England naturalization is conferred upon application to one of the principal secretaries of state; in France, by the President of the Republic; in Russia, by the minister of the interior; in Prussia, by the police authorities; in Norway, by the Storthing; in Turkey, by the minister of foreign affairs; and by the chief executive authority in all other European

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