In re Prime

D. Montana

In re Prime

40 F.2d 972, 1930 U.S. Dist. LEXIS 2105

CourtDistrict Court, D. Montana

DecidedMay 22, 1930

DocketNo. 341

StatusPublished

This text of 40 F.2d 972 (In re Prime) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Prime, 40 F.2d 972, 1930 U.S. Dist. LEXIS 2105 (D. Mont. 1930).

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Opinion

BOURQUIN, District Judge.

December 4, 1929, this court rendered decree admitting Prime to citizenship. She inadvertently departed the court and the state without signing an affidavit of allegiance and certificate of naturalization, and she now requests that a certificate be issued to her without her return hither to sign them, return being practically impossible.

Prime became a citizen by virtue of the deeree, and now is and continues a citizen whether or not the documents aforesaid are signed by her or a certificate issues. The deeree is the grant; the other, mere evidence of the grant. No affidavit of allegiance is required by statute, and though the Secretary of Labor has power to make “regulations as may be necessary for properly carrying into execution” the law (8 USCA § 356), and by regulation prescribes such affidavit, it falls within the rule that the statute having defined the proof required, viz., oath of allegiance orally in open court (8 USCA § 381), it impliedly denies authority to exact proof of different sort, viz., said affidavit. See Smull’s Case, 236 U. S. 411, 35 S. Ct. 349, 59 L. Ed. 641.

The statute does prescribe that any certificate of naturalization shall be signed by the newly admitted citizen. 8 USCA § 409. The signature is generally attached in the clerk’s office, but nothing in the statute or reason forbids it to be attached anywhere. Accordingly, the forms will be transmitted to the clerk of the court where Prime is sojourning, there to be by her signed and by him returned, whereupon certificate to Prime will issue herein.

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BOURQUIN, District Judge.

December 4, 1929, this court rendered decree admitting Prime to citizenship. She inadvertently departed the court and the state without signing an affidavit of allegiance and certificate of naturalization, and she now requests that a certificate be issued to her without her return hither to sign them, return being practically impossible.

Prime became a citizen by virtue of the deeree, and now is and continues a citizen whether or not the documents aforesaid are signed by her or a certificate issues. The deeree is the grant; the other, mere evidence of the grant. No affidavit of allegiance is required by statute, and though the Secretary of Labor has power to make “regulations as may be necessary for properly carrying into execution” the law (8 USCA § 356), and by regulation prescribes such affidavit, it falls within the rule that the statute having defined the proof required, viz., oath of allegiance orally in open court (8 USCA § 381), it impliedly denies authority to exact proof of different sort, viz., said affidavit. See Smull’s Case, 236 U. S. 411, 35 S. Ct. 349, 59 L. Ed. 641.

The statute does prescribe that any certificate of naturalization shall be signed by the newly admitted citizen. 8 USCA § 409. The signature is generally attached in the clerk’s office, but nothing in the statute or reason forbids it to be attached anywhere. Accordingly, the forms will be transmitted to the clerk of the court where Prime is sojourning, there to be by her signed and by him returned, whereupon certificate to Prime will issue herein.

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Bluebook (online)

40 F.2d 972, 1930 U.S. Dist. LEXIS 2105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-prime-mtd-1930.

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