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207
P.2d 425
(Cite
as: 167 Kan. 451, 207 P.2d 425)
Supreme Court of Kansas
COHNSTAEDT
v.
IMMIGRATION
AND NATURALIZATION SERVICE
OF
UNITED STATE DEPARTMENT OF JUSTICE.
No.
37531.
June
11, 1949.
Rehearing
Denied July 8, 1949.
Appeal
from District Court, Barton County; Roy J. McMullen, Judge.
Proceeding in the matter of the petition of Martin Ludwig
Cohnstaedt for naturalization, opposed by the Immigration
and Naturalization Service of the United States Department
of Justice. From an adverse judgment, petitioner appeals.
Judgment
affirmed.
West
Headnotes
[1]
Aliens 8(6)
24k68(6)
Most Cited Cases
Where
state court had fixed first Tuesday in June and third Tuesday
in November as days for hearing petitions for naturalization
and for taking final action, memorandum decision that petitioner
should be admitted to citizenship filed on February 28 was
not a final order precluding subsequent decision on June
23 denying the petition. Nationality Act of 1940, §§ 301(b),
332(d), 8 U.S.C.A. §§ 701(b), 732(d); U.S.C.A. Const. art.
1, § 8.
[2]
Aliens 62(1)
24k62(1)
Most Cited Cases
Alien
who is willing to take oath of allegiance and to serve in
army as a non- combatant, but who because of religious scruples
is unwilling to bear arms in defense of the United States
may be admitted to citizenship. Nationality Act of 1940,
§ 301(b), 8 U.S.C.A. § 701(b).
[3]
Aliens 62(1)
Most
Cited Cases
Petitioner for citizenship, who at time of war would not
willingly work in munitions factory and assist in manufacture
of munitions to destroy enemy forces whose aim it would
be to destroy armed forces of the United States, and who
would not deliver ammunition to men at front engaged in
combat duty, although he would remove wounded from battle
front as a civilian, was not entitled to citizenship. Nationality
Act of 1940, § 301(b), 8 U.S.C.A. § 701(b).
**426
*451 Syllabus by the Court.
1.
Following Girouard v. United States, 328 U.S. 61, 66 S.Ct.
826, 90 L.Ed. 1084, it is held that an alien who is willing
to take the oath of allegiance and to serve in the army
as a noncombatant, but who, because of religious scruples,
is unwilling to bear arms in defense of this country, may
be admitted to citizenship.
2. A petitioner whose evidence disclosed that in time of
war he would not willingly work in a munitions factory and
assist in the manufacture of munitions for the purpose of
destroying enemy forces whose aim it would be to destroy
the armed forces of the United States, nor would have deliver
ammunition to men at the front who were engaged in combat
duty, is not entitled to be admitted to citizenship.
3.
The record examined, and held, the trial court did not err
in refusing to admit the petitioner to citizenship in the
United States.
Laurence S. Holmes, of Wichita, for appellant.
V.
J. Bowersock, Assistant United States Attorney, District
of Kansas, Columbus (Lester Luther, United States Attorney,
District of Kansas, Topeka, on the brief), for appellee.
THIELE, Justice.
Martin
Ludwig Cohnstaedt, hereafter referred to as the petitioner,
filed his petition in the district court of Barton County,
*452 Kansas, to become a naturalized citizen of the United
States. The prayer of his petition was denied and he perfected
his appeal to this court.
In a preliminary way it is observed that under article 1,
section 8, of the Constitution of the United States, the
Congress shall have power to establish 'an uniform Rule
of Naturalization' and that it has done so, by an act which
provides that a person may be naturalized as a citizen of
the United States in the manner and under the conditions
prescribed and not otherwise, 8 U.S.C.A. § 701(b), and that
petitions for naturalization may be filed and shall be docketed
the same day as filed, but that final action thereon shall
be had only on stated days to be fixed by the rule of the
court, 8 U.S.C.A. § 732(d). Under previous like statutes
the rule of the Barton county district court fixed the first
days of the June and November terms, being the first Tuesday
in June and the third Tuesday in November in each year as
the days for hearing petitions for naturalization and on
which dates, and no others, final action would be taken
on applications for citizenship.
On
May 13, 1947, the petitioner filed his petition and was
later examined by an official of the naturalization service,
who found that petitioner should not be naturalized. Later,
and on November 18, 1947, which was the day fixed by the
rule, a hearing was had, at which time the government's
adverse recommendation was filed and petitioner and his
witnesses testified, and petitioner was given leave to file
a brief, and that was done. On February 28, 1948, which
was not a rule day, the trial judge filed a written memorandum
or decision that under the authority of Girouard v. United
States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084, petitioner
should be admitted to citizenship upon taking the oath.
On June 21, 1948, the petitioner filed his motions for judgment
and on June 23, 1948, the trial court entered its order
**427 denying the petition for naturalization. Petitioner's
motion for a new trial was denied, and he filed his notice
of appeal.
[1]Petitioner
makes some contention that the ruling or decision of the
trial court of February 28, 1948, was a final order, and
not having been appealed from became a finality, and our
attention is directed to certain of our decisions, which
need not be reviewed, for they are not in point here. While
it is true that jurisdiction to confer citizenship through
naturalization proceedings is conferred upon the state court,
8 U.S.C.A. § 701, the procedure to be *453 followed is that
fixed under that act. The Barton county district court had
fixed rule days on which dates and no others, final action
would be taken on applications for citizenship. The decision
of February 28, 1948, was not on such a date and cannot
be given the finality which the petitioner seeks to attribute
to it.
Petitioner's
principal contention, as stated by him, is that he submitted
sufficient evidence to the trial court to show that he is
attached to the principles of the United States Constitution;
that he is a person of good moral character; that he has
met all of the requirements of citizenship and his petition
should have been granted, and his brief is devoted to a
development of that contention, our attention being directed
to the evidence and to certain decisions of the Supreme
Court of the United States. At the oral agreement petitioner
made it clear that he was relying upon the principles laid
down in Girouard v. United States, supra, and he conceded
that if his evidence did not meet the test set forth in
that case the judgment of the trial court should be affirmed.
[2]Prior
to 1946 the Supreme Court of the United States had held
that an alien who refused to bear arms would not be admitted
to citizenship. See United States v. Schwimmer, 279 U.S.
644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh,
283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; and United States
v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319. In
an opinion handed down in 1946, however, that court in Girouard
v. United States, reconsidered the question, held that the
three cases noted above did not state the correct rule of
law, which in substance is that an alien who is willing
to take the oath of allegiance and to serve in the army
as a non- combatant, but who because of religious scruples
is unwilling to bear arms in defense of this country, may
be admitted to citizenship.
[3]Petitioner
contends his evidence showed his to have met the test of
the last mentioned case. Assuming that his evidence is to
be fully credited, it showed. the following. Petitioner
was born in Germany in 1917, went to England in 1934, came
to the United States in 1937, attended various schools in
the United States and since 1946 has been a teacher in Sterling
College at Sterling, Kansas. Testimony as to petitioner's
character and reputation need not be detailed. On his direct
examination petitioner stated he subscribed to the principles
enumerated in the Constitution of the United States, and
that he agreed to support and defend the Constitution and
laws *454 against all enemies and to bear true faith and
allegiance to the United States, and that he made such statements
without mental reservations. On cross-examination, a verified
statement containing questions asked by an official of the
naturalization service and petitioner's answers was introduced
into the record and petitioner was examined with respect
thereto. No purpose will be served by detailing this examination.
Summarized, petitioner stated he believed the existence
of armed service was not necessary in a Christian nation,
and that he was willing to have repealed all laws providing
for armed services; that he was not an ordained minister
but was a member of the Society of Friends; that he was
willing to perform any duty which the government required
which did not conflict with his religious beliefs, but that
he could not contribute anything to be used solely and directly
in furtherance of armed conflict; that he was opposed to
sending arms and ammunition to our allies in the recent
war; that he was not willing to work in a munitions factory
in time of war and assist in manufacture of munitions for
the purpose of destroying enemy forces whose aim would be
to destroy the armed forces of **428 the United States;
that in event of war, if it should be permissible for civilians
to remove the wounded from a battlefield he would do so,
but he would not deliver ammunition to men at the front
who were engaged in combat duty. Other evidence need not
be noted.
We think the above makes it clear that petitioner is not
willing to serve in the army as a non-combatant, and that
he is not entitled to be admitted to citizenship; that the
trial court did not err in so concluding, and that its judgment
should be and it is affirmed. Kan. 1949
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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