The opinion of the court was delivered by: BYERS
A question of law is presented in this cause under circumstances which involve no contested issues of fact; this means that itemized findings are not required to be stated.
That question is whether the language of 8 U.S.C. § 1004,
dealing with the revocation of naturalization of an alien soldier acquired while he was in the military service, §§ 1001, 1002,
is ipso facto forfeited by reason of his later dishonorable discharge therefrom; or that a court being vested with authority so to declare, is none the less empowered to inquire into the circumstances concerned in the discharge, and to decide the case according to his understanding of the evidence and in the ordinary exercise of the judicial function.
As I shall hope to make reasonably clear, the latter procedure is deemed to accord with the Congressional purpose.
The Nationality Act of 1940 was amended March 27, 1942 to provide, 8 U.S.C. §§ 1001 and 1002, for the acquisition of naturalization by aliens in the armed forces outside the jurisdiction of the Naturalization Court, and the filing of the proceedings and certificate with the Clerk of the Naturalization Court in the district of the applicant's residence. Sec. 1004
states that these provisions shall not apply to those who have been dishonorably discharged from the military or naval forces or discharged on account of alienage, or to certain kinds of conscientious objectors. Then follows the provision involved in this controversy:
'Provided, That citizenship granted pursuant to this subchapter may be revoked as to any person subsequently dishonorably discharged from the military or naval forces in accordance with Section 738 of this title; and such ground for revocation shall be in addition to any other provided by law.' 56 Stat. 183.
It is undisputed that this defendant was dishonorably discharged on May 14, 1946 pursuant to the order of a General Court Martial, having been found guilty of:
'Violation of the 61st Article of War.
'In that Private Joseph A. Tarantino, then of 689th Quatermaster Base Depot Company, did, without proper authority, absent himself from his station and duties at Dijon, France from about 27 May 1945, to about 19 June 1945.'
A further specification of desertion from about 20 June 1945 to about 30 October 1945 in violation of the 58th Article of War, 10 U.S.C.A. § 1530, resulted in a finding of not guilty, but the charge was changed to a violation of the 61st Article, 10 U.S.C.A. § 1533, and as so changed, the finding was also guilty. The sentence was Dishonorable Discharge, forfeiture of pay and allowances and one year at hard labor.
The defendant, being then 28 years of age, was naturalized on June 4, 1943 pursuant to the said statute, while serving in the Army, at Canastel, Algeria. He was born in Italy October 28, 1914, and came to this country five years later with his parents.
He seems to have been inducted at Camp Upton on August 19, 1942 if the records in evidence are understood, which means that apparently he did not rely upon his then alienage to exempt him from military service.
Thus it becomes necessary to examine the Government's contention that judgment is required to be granted according to the prayer of the complaint, because the words above quoted that defendant's citizenship 'may be revoked' really mean that it must be revoked; in effect that the Court is directed to perform the ministerial act of ordering revocation upon the undisputed record as made.
The argument is based upon the proposition that where 'the rights of the public or other persons are dependent upon the exercise of the power conferred (namely the power of the court here invoked), the word 'may' takes on the mandatory form. The performance of the act provided for is then neither discretionary nor optional upon (with?) the person or officer required to perform the act.' Such, it is said, was the decision in Supervisors v. U.S., 4 Wall. 435, 18 L. Ed. 419. Also cited are: Vaughan v. John C. Winston Co., 10 Cir., 83 F.2d 370; Wilson v. U.S., 3 Cir., 135 F.2d 1005; and Mullaney v. Hess, 9 Cir., 189 F.2d 417.
Since it is the judicial function which has been invoked, properly it seems, in view of the nature of naturalization proceedings, that function would not be called into play if all that is involved is the automatic application of the word 'must' in place of the word 'may'. That simple expedient would relieve the Court of a duty which I think is implicit in the quoted language of the statute. ...