The opinion of the court was delivered by: ZAVATT
This is a proceeding, pursuant to Section 340 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451(a),
to: (1) revoke and set aside the order of the Supreme Court of the State of New York, County of Queens, dated April 1, 1927, which admitted the defendant to citizenship and (2) to cancel the Certificate of Naturalization, No. 2489530, issued pursuant thereto. The case is now before this court on defendant's motion, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, to dismiss the complaint upon the grounds that the court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted. An additional contention, i.e., that section 340(a) is unconstitutional in that it offends Article I, Section 8, Clause 4 of the Constitution of the United States and the Fourteenth Amendment thereto, was not advanced upon the argument of the motion. In any event, this court regards the constitutionality of such legislation to have been conclusively determined by the Supreme Court in Bindczyck v. Finucane, 342 U.S. 76, 72 S. Ct. 130, 96 L. Ed. 100 (1951) and Knauer v. United States, 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500 (1946). See also, United States v. Costello, 275 F.2d 355 (2d Cir. 1960), aff'd, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961); United States v. Minerich, 250 F.2d 721 (7th Cir. 1957); United States v. Riela, 215 F.Supp. 914 (D.N.J.1963).
Defendant's jurisdictional argument is based upon his contention that the complaint is not supported by a sufficient and adequate affidavit showing good cause as is required by section 340(a). The allegation that the complaint does not state a claim against the defendant is predicated upon the following grounds: (1) that the allegations contained therein, if proven would be insufficient to secure a revocation of citizenship under the test established by the Supreme Court of the United States in Chaunt v. United States, 364 U.S. 350, 81 S. Ct. 147, 5 L. Ed. 2d 120 (1960); that a similar result would follow because (2) the Government has failed to allege in the complaint and affidavit that defendant's arrest on the charge of 'Blasphemy' and his arrest and conviction for 'Inciting Overthrow of Government' (of the Commonwealth of Massachusetts) were lawful; (3) the Government has failed to allege that the defendant has committed a legal wrong; and (4) the Government, as plaintiff, has failed to allege that it has suffered a legal injury as a result of defendant's actions. For the reasons hereinafter stated, the court deems each of these contentions to be without merit and must deny defendant's motion to dismiss the complaint.
On a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the factual allegations of the complaint, but not the legal conclusions to be drawn therefrom, are deemed admitted. Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 58 S. Ct. 466, 82 L. Ed. 646 (1938); Haley v. Childers, 314 F.2d 610 (8th Cir. 1963); Hess v. Petrillo, 259 F.2d 735 (7th Cir.), cert. denied, 359 U.S. 954, 79 S. Ct. 743, 3 L. Ed. 2d 761 (1958); Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957); McGuire v. Todd, 198 F.2d 60 (5th Cir.), cert. denied, 344 U.S. 835, 73 S. Ct. 44, 97 L. Ed. 649 (1952). The following facts, therefore, are admitted for the purposes of this motion: On December 9, 1926, the defendant filed a petition for naturalization in the Supreme Court of the State of New York at Long Island City, New York. In his preliminary examination before a United States naturalization examiner, at the time of the filing of said petition, the defendant alleged under oath that he had never been arrested or charged with the violation of any law or convicted of any crime. In fact, however, the defendant had been arrested on or about February 3, 1926 (ten months prior to his sworn denial) and charged with the commission of two crimes at Brockton, Massachusetts, to wit: 'Blasphemy' and 'Inciting Overthrow of Government' (of the Commonwealth of Massachusetts), the latter being a violation of the General Laws of Massachusetts, Ch. 264, Sec. 11. A certified copy of the records of the District Court of Brockton, Massachusetts, reveals that a complaint was made under oath by one Anthony W. Eudaco that, on January 26, 1926, in the County of Plymouth, the defendant:
'did by speech, advise, counsel, and incite the overthrow, by force and violence, the Government of the Commonwealth of Massachusetts.'
In response to a motion by the defendant for a bill of particulars specifying:
'1. The exact time and place where the alleged utterances charged in the complaint, were made.
2. The language alleged to have been used by the defendant constituting the complaint charge.'
The commonwealth filed the following particulars on February 18, 1926:
'COMMONWEALTH OF MASSACHUSETTS
Plymouth SS District Court
February 18, 1926 of Brockton
The commonwealth alleges that the defendant did violate G.L. Chapter 264, section 11, by saying in substance in Lithuanian language, a translation of which in English is as follows:
Here we are organizing Lithuanians among Lithuanians, the Poles among the Polish and the Jews among the Jewish, etc., to overthrow the American Capitalistic Government by a revolution in the same way they did in Russia and establish the same kind of Government that they now have in Russia. Workers are out of employment/they are being persecuted here in America and now is the time to organize.
We don't believe in the ballot. We don't believe in any form of government but the Soviet form and we shall establish the Soviet form of Government here. The red flag shall fly on the capitol in Washington and there will be one on the Lithuanian Hall in Brockton.
By its attorney, (a) Manuel Ruh
(Seal of) A True Copy, Attest:
(Court of) George M. Covett
(Brockton) Clerk of said Court'
The charge of blasphemy was dismissed. But on March 2, 1926, after a trial before the District Court of Brockton, Plymouth County, Massachusetts, the defendant was found guilty of the charge of 'Inciting Overthrow of Government' and fined the sum of $ 100. He appealed from the judgment of conviction to the Superior Court. Before the defendant was admitted to citizenship on April 1, 1927 and had received certificate of ...