Citizenship/Jurisdiction Cites

[suijuris]

I propose we start a thread only for CITES regarding citizenship & jurisdictional issues. Anyone who finds additional cites on this topic please post here. Please start a new thread if you have question on any of the cites, to keep this thread uncluttered.

Sui Juris

[suijuris]

"There is in our political system [two governments], a government of the Several [50] States, and a government of the United States. Each is distinct from the other and has citizens of its own. A person may be a citizen of the United States and of a State, and as such have different rights." U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.



Volume 20: Corpus Juris Sec. § 1785: "The United States government is a foreign corporation with respect to a state". NY Re: Merrian, 36 N.E. 505 1441 S.CT. 1973, 41 L.Ed. 287.



The United States is defined as "A Federal Corporation" in the United States Code, Title 28 - Judiciary and Judicial Procedure, Subchapter A - Definitions and general provisions, § 3002 - Definitions, at number 15 (a).



"The United States Government as such is fictitious and thus includes the States Government." Blacks Com. 133, Bouvier`s law dictionary, page 1215 (1914).



Also, in the Internal Revenue Code, Title 26, the United States is defined as "the District of Columbia," which is in Washington D.C. This is confirmed in the US Constitution, in Article I, § 8; the jurisdiction of the United States is "over such District (not exceeding ten Miles square)," and is also over federal territories purchased by the federal government. Washington D.C. is not a state.



"The District of Columbia is not a `state' within the meaning of the constitution." U.S. v. Virginia, 1805

[suijuris]

A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.



A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)



A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).



"Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.



"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).



"The law is well-settled that a void order or judgement is void even before reversal", VALLEY v. NORTHERN FIRE & MARINE INS. CO., 254 u.s. 348, 41 S. Ct. 116 ( 1920 )



"Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgements and orders are regarded as nullities ; they are not voidable, but simply void, and this even prior to reversal." WILLIAMSON v. BERRY, 8 HOW. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).



"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action." Melo v. U.S. 505 F 2d 1026



"There is no discretion to ignore lack of jurisdiction." Joyce v. U.S. 474 2D 215.



"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F 2d 416



"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150



"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." 100 S. Ct. 2502 (1980)



"Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co. 495 F 2d 906, 910.



"Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985)



"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150.



"Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389.



"Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250.



"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.



Though not specifically alleged, defendant's challenge to subject matter jurisdiction implicitly raised claim that default judgment against him was void and relief should be granted under Rule 60(b)(4). Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), aff'd, 691 F.2d 1 (1st Cir. 1982).



Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230-31 (8th Cir. 1997) (as long as there is an "arguable basis" for subject matter jurisdiction, a judgment is not void).



Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972) ("A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect.").



Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938) ("Every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter.");



GEICO v. Jackson, 1995 U.S. Dist. LEXIS 16814, *1 (1995) ("[A] default judgment constitutes an implicit ruling on subject matter jurisdiction and an erroneous determination does not make the judgment void under Rule 60(b)(4)").



"Either a judgment is valid or it is void, and the court must act accordingly once the issue is resolved." In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997).



"A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time." 261 Kan. at 862.



"A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)



A judgment obtained without jurisdiction over the defendant is void. Overby v. Overby , 457 S.W.2d 851 (Tenn. 1970).



A void judgment is one of the grounds for relief under Rule 60, Tenn. R. Civ. Proc. See Rule 60.02(3).



Dictionary.Law.com: void adj. referring to a statute, contract, ruling or anything which is null and of no effect. A law or judgment found by an appeals court to be unconstitutional is void, a rescinded (mutually cancelled) contract is void, and a marriage which has been annulled by court judgment is void.



When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing. State v. Bouck, 2001 ND 153, 633 N.W.2d 163



There is no time limit for attacking a void judgment under N.D.R.Civ.P. 60(b)(iv). Eggl v. Fleetguard, Inc., 1998 ND 166, 583 N.W.2d 812



Habeas corpus is an appropriate remedy to attack a void judgment or sentence. See Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App. 2001); Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996); Heath v. State, 817 S.W.2d at 336 (Tex.Crim.App. 1991) (opinion on original submission); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979).



A void conviction may be challenged in a post-conviction habeas corpus proceeding. Beck, 922 S.W.2d 181; Heath, 817 S.W.2d at 336; Ex parte McIver, 586 S.W.2d 851; Burns, 441 S.W.2d 532; Jenkins, 433 S.W.2d 701; Higginbotham, 382 S.W.2d 927; Strother, 395 S.W.2d 629; Rawlins, 255 S.W.2d 877.





If such an action by the trial court in Seidel rendered the dismissal void, then an even stronger case can be made that the violation of Article 1.13(c) in the instant case rendered the resulting conviction void. By Article 1.13(c), the Legislature has specifically prohibited a trial court from accepting a defendant's waiver of a jury trial until the court has appointed an attorney to represent him. Here, not only was "[t]he trial judge's action ... not authorized by law ...," Seidel, 39 S.W.2d at 225, the action was specifically prohibited by statute. Requiring an objection at trial in these circumstances would lead to a Catch-22 situation: a defendant must object to not having an attorney appointed to advise him as to waiver of jury trial, without having been advised by an attorney that he was entitled to such representation and advice. Given the absurdity of such a situation, we chose in the past to characterize the resulting conviction as "void" and allow the defendant to raise the issue in a habeas corpus proceeding. Otherwise, defendants, such as appellant, are left without a remedy even though there has been a clear violation of a mandatory statute.



Thus, in a long line of cases, most notably Heath and Seidel, we have held that some defects, even though they are "just" statutory defects, are so egregious that they are cognizable on habeas corpus. See Heath, 817 S.W.2d at 336; Seidel, 39 S.W.3d 221 at 225; Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979). In Heath, we characterized these defects as rendering the conviction "void." 817 S.W.2d at 336. However, we could have properly characterized as "fundamental" errors those "unauthorized sentences" and "statutory defects" which render a sentence void. No matter what we choose to call these "errors," the underlying purpose is the same: to balance a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions.



In Texas, a defendant has a statutory right to have counsel appointed before he can waive his right to a jury trial. The Legislature has decided that the right to a jury trial is so important that before a defendant can waive that right, he should have the opportunity to consult with counsel. If a trial court denies a defendant that right by refusing to appoint counsel, equity demands that the balance be struck in favor of the defendant. Therefore, a defendant should be allowed to contest, in a habeas corpus proceeding, a violation of Article 1.13(c).



The court then concluded that, in the case before it, the trial court had jurisdiction of the subject matter because it was a circuit court which has jurisdiction of all felonies and that any objection King had to jurisdiction over his person was waived by his personal appearance. [State v. King, 426 So. 2d 12 (Fla. 1982)]



Conviction of a nonexistent crime results in a void judgment not subject to waiver. People v. McCarty 94 Ill. 2d 28, 37 (1983).



A recent discussion of the Rule 60(b)(4) grounds for attack on a void judgment may be found in Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990). The judgment was set aside for lack of personal jurisdiction based on improper service by publication. The court defined a judgment as void "only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It should be noted here that a Rule 60(b)(4) motion involves a different standard of review than the other Rule 60(b) subsections since the court held "[w]hen the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.



"The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time." People v. Ruiz (1990) 217 Cal. App. 3d 574, 265 Cal. Rptr. 886



Held: Petitioner was not accorded a fair and impartial trial, to which he was entitled under the Due Process Clause of the Fourteenth Amendment; his conviction is void; the judgment denying habeas corpus is vacated; and the case is remanded to the District Court for further proceedings affording the State a reasonable time to retry petitioner. 366 U.S. 717



See American Surety Co. v. Baldwin, 287 U.S. 156, 166-67 (1932) (applying res judicata to action seeking to set aside judgment for lack of jurisdiction); Browning v. Navarro, 887 F.2d 553, 558-59 (5th Cir. 1989) (res judicata applies to actions to void judgment for fraud).



Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit.



In a long and venerable line of cases, the Supreme Court has held that, without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. ___, ___. Bell v. Hood, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law’s meaning or constitutionality when it has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17.



"A court lacking diversity jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisidiction is lacking. 28 U.S.C.A. §1332."



"Party invoking jurisdiction of the court has duty to establish that federal jurisdiction does not exist. 28 U.S.C.A. §§1332, 1332(c)."



"There is a presumption against existence of federal jurisdiction; thus, party invoking federal court's jurisdiction bears the burden of proof. 28 U.S.C.A. §§1332, 1332(c); Fed.Rules Civ. Proc. rule 12(h)(3), 28 U.S.C.A."



"If parties do not raise question of lack of jurisdiction, it is the duty of the federal court to determine the manner sua sponte. 28 U.S.C.A. §1332."



"Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction, or stipulation. 28 U.S.C.A. §1332."



"Although defendant did not present evidence to support dismissal for lack of jurisdiction, burden rested with plaintiffs to prove affirmatively that jurisdiction did exist. 28 U.S.C.A. §1332". Basso v. Utah Power and Light Company, 495 F.2d 906 (1974)

[Jerseee]

Sui Juris,

I really needed this info!!! Thanks.

[suijuris]

Jersee, I know some of these cites strayed from jurisdictional issues towards void judgements, but it nice to be reminded that all is not lost when a judgement is ordered without proper jurisdiction.

Also, for more info on void judgements, you should check out "Secrets of the Legal Industry", but Richard Cornforth.

It is available in the downloads here:
Secrets of the Legal Industry

Regards,
Sui Juris

[Jerseee]

Sui Juris,

Thanks for the link. I think I have it. And these void judgments cases have a lot to do with jurisdictional issues. remember, they need to establish subject matter jurisdiction before anything else or there is no case to judge. You are on track with this thread IMHO, keep em coming!

[suijuris]

JURISDICTION OF FEDERAL COURTS: Art I and Art III Courts:



O'Donohue v. United States, 289 U.S. 516 (1933): Ruled that district courts were Art. III courts.



'As the only judicial power vested in Congress is to create courts whose judges shall hold their offices during good behavior, it necessarily follows that, if Congress authorizes the creation of courts and the appointment of judges for a limited time, it must act independently of the Constitution and upon territory which is not part of the United States within the meaning of the Constitution. ... It is sufficient to say that this case (The American Insurance Company et al. v. Canter, supra) has ever since been accepted as authority for the proposition that the judicial clause of the Constitution has no application to courts created in the territories, and that with respect to them Congress has a power wholly unrestricted by it.' [289 U.S. 516, 543] After an exhaustive review of the prior decisions of this court relating to the matter, the following propositions, among others, were stated as being established:



'1. That the District of Columbia and the territories are not states within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states;



'2. That territories are not states within the meaning of Rev. St. 709, permitting writs of error from this court in cases where the validity of a state statute is drawn in question;



'3. That the District of Columbia and the territories are states as that word is used in treaties with foreign powers, with respect to the ownership, disposition, and inheritance of property;



'4. That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish.'







These [territorial] courts then, are not Constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general rights of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of the State government.

[American Insurance Co. v. 356 Bales of Cotton]

[1 Pet. 511 (1828), emphasis added]





The United States District Court is not a true United States court established under Article III of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article IV, Section 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.

[Balzac v. Porto Rico, 258 U.S. 298 at 312]

[42 S.Ct. 343, 66 L.Ed. 627 (1921)]



United States District Courts have only such jurisdiction as is conferred by an Act of Congress under the Constitution.

U.S.C.A. Const. art. 3, sec. 2; 28 U.S.C.A. 1344]

[Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir., 1972)]





The United States district courts are not courts of general jurisdiction. They have no jurisdiction except as prescribed by Congress pursuant to Article III of the

Constitution. [many cites omitted]

[Graves v. Snead, 541 F.2d 159 (6th Cir. 1976)]





The question of jurisdiction in the court either over the

person, the subject-matter or the place where the crime was committed can be raised at any stage of a criminal proceeding; it is never presumed, but must always be proved; and it is never waived by a defendant.

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)]





In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)]





Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]





The United States District Court has only such jurisdiction as Congress confers.

[Eastern Metals Corp. v. Martin]

[191 F.Supp 245 (D.C.N.Y. 1960)]

[suijuris]

COURT CITES RELATING TO FEDERAL JURISDICTION:



“It is well established principle of law that all federal legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears” Foley Brothers, Inc. v. Filardo, 336 US 281 (1949)



“Constitutional restrictions and limitations were not applicable to the areas of land, enclaves, territories and possession over which Congress had exclusive legislative authority” Downes v. Bidwell, 182 US 244 (1901)



"There is a presumption against existence of federal jurisdiction; thus, party invoking federal court's jurisdiction bears the burden of proof. 28 U.S.C.A. §1332, 1332(c); Fed.Rules Civ. Proce. Rule 12(h)(3), 28 U.S.C.A. If parties do not raise question of lack of jurisdictino, it is the duty of the federal court to determine the matter sua sponte. 28 U.S.C.A. §1332. Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction, or stipulation. 28 U.S.C.A. §1332. Although defendant did not present evidence to support dismissal for lack of jurisdiction, burden rested with plaintiffs to prove affirmatively that jurisdiction did exist. 28 U.S.C.A. §1332." Basso v. Utah Power and Light Company, 495 F.2d 906 (1974)"



"The judicial power does not extend to the determination of abstract questions. Muskrat v. United States, 219 U.S. 346, 361 , 31 S.Ct. 250; Liberty Warehouse Company v. Grannis, 273 U.S. 70, 74 , 47 S.Ct. 282; Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 289 , 48 S.Ct. 507; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 262 , 264 S., 53 S.Ct. 345, 87 A.L. R. 1191." Ashwander v. TVA, 297 U.S. 288 (1936)



“It is clear that Congress as a legislative body, exercises two species of legislative power: the one, limited as to its objects but extending all over the Union; the other, an absolute, exclusive legislative power over the District of Columbia.” Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 265; 5 L.Ed. 257 (1821)



“All legislation is prima facie territorial”

American Banana Co. v. U.S. Fruit, 213 U.S. 347 at 357-358



“Special provision is made in the Constitution for the cession of jurisdiction from the states over places where the federal government shall establish forts or other military works. And it is only in these places, or in territories of the United States, where it can exercise a general jurisdiction” New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)



“There is a canon of legislative construction which teaches Congress that, unless a contrary intent appears [legislation] is meant to apply only within territorial jurisdiction of the United States.”

U.S. v. Spelar, 338 U.S. 217 at 222 (1949)



“the United States never held any municipal sovereignty, jurisdiction, or right of soil in Alabama or any of the new states which were formed ... The United States has no Constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted ...”

Pollard v. Hagan, 44 U.S. 213, 221, 223 (1845)



“... the states are separate sovereigns with respect to the federal government”

Heath v. Alabama, 474 U.S. 82 (1985)



“No sanction can be imposed absent proof of jurisdiction” [Stanard v. Olesen, 74 S. Ct.768]



"...Federal jurisdiction cannot be assumed, but must be clearly shown." Brooks v. Yawkey, 200 F.2d 633



"Jurisdiction is essential to give validity to the determinations of administrative agencies and where jurisdictional requirements are not satisfied, the action of the agency is a nullity..." City Street Improv. Co. v. Pearson, 181 C 640, 185 P. 962; O'Neill v. Dept of Professional & Vocational Standards, 7 CA2d 393, 46 P2d 234



“Once challenged, jurisdiction cannot be ‘assumed’, it must be proved to exist.” [Stuck v. Medical Examiners, 94 Ca2d 751.211 P2s 389]



"The law requires PROOF OF JURISDICTION to appear on the Record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533 (1974)



"Therefore, it is necessary that the record present the fact establishing the jurisdiction of the tribunal." Lowe v. Alexander 15C 296; People v. Board of Delegates of S.F. Fire Dept., 14 C 479



"A Justice's Court is an inferior court, and its jurisdiction must be shown affirmatively by a party relying upon, or claiming any right under, its judgments." Jolley v. Foltz (1867), C. 321.



"If any tribunal (court) finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed." Louisville RR v. Motley, 211 U.S. 149, 29 S.Ct. 42 (1908)



"A judgment is absolutely void if it appears that there was a want of jurisdiction in the court rendering it either of the subject matter or the person of the defendant." Hahn v. Morse (1868), C. 391.



"An officer who acts in violation of the Constitution ceases to represent the government." Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.



"Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney's fees." Lezama v. Justice Court, A025829.



"Our own experience is fully consistent with the common law's rejection of a rule of judicial immunity from prospective relief. We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence." Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970 (1984); cited in Lezama v. Justice Court, A025829.



"Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable." Dykes v. Hosemann, 743 F.2d 1488 (1984).



"In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts."



"Judge's honesty of purpose and sincere belief that he was acting in discharge of his official duty was not available as defense in action."



"Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68; also Bradley v. Fisher, 13 Wall 335,351." Manning v. Ketcham, 58 F.2d 948.



"A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible." Bradley v.Fisher,13 Wall 335, 351, 352.



"The immunity of judges for acts within their judicial role is beyond cavil." Pierson v. Ray, 386 U.S. 547 (1967).



"Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law." In re McCowan (1917), 177 C. 93, 170 P. 1100.



"All are presumed to know the law." San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.



"It is one of the fundamental maxims of the common law that ignorance of the law excuses no one." Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.



FEDERAL RULES OF CIVIL PROCEDURE CITES RELATING TO JURISDICTION:



Federal Rules of Civil Procedure, Rule 12(b) provides the escape clause from federal prosecution for the Citizens of the 50 states:



Rule 12. Defenses and Objections--



(b) "...the following defenses may at the option of the pleader be made by motion:



(1) lack of jurisdiction over the subject matter.



(2) lack of jurisdiction over the person.



...A motion making any of these defenses shall be made before pleading..



(h)(3) "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."





FEDERAL STUDY ON JURISDICTION WITHIN THE STATES:



In June, 1957, the government of the United States published a work entitled Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II. The Committee stated at pg. 45 :



"It scarcely needs to be said that unless there has been a transfer of jurisdiction pursuant to clause 17 by a Federal acquisition of land with State consent, or by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non-interference by the State with Federal functions..."



"The consent requirement of Article I, section 8, clause 17 was intended by the framers of the Constitution to preserve the State's jurisdictional integrity against federal encroachment. The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State," Id., at 46.



According to the April, 1956, report (Part I), pages 41-47 of the Interdepartmental Committee "Study Of Jurisdiction Over Federal Areas Within The States," the court has recognized three methods by which the federal government may acquire exclusive legislative jurisdiction over a physical area:



Constitutional consent.--Other than the District of Columbia, the Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction-- purchase with State consent under article I, section 8, clause 17.



..."and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the creation of forts, magazines, arsenals, dockyards and other needful buildings...."



"The debates in the Constitutional Convention and State ratifying conventions leave little doubt that both the opponents and proponents of Federal exercise of exclusive legislature jurisdiction over the seat of government were of the view that a constitutional provision such as clause 17 was essential if the Federal government was to have such jurisdiction.... While, as has been indicated in the preceding chapter, little attention was given in the course of the debates to Federal exercise of exclusive legislative jurisdiction over areas other than the seat of government, it is reasonable to assume that it was the general view that a special constitution provision was essential to enable the United States to acquire exclusive legislative jurisdiction over any area..."



According to the 1956 report, pages 7-8, "... the provision of the second portion, for transfer of like jurisdiction [as the District of Columbia] to the Federal Government over other areas acquired for Federal purposes, was not uniformly exercised during the first 50 years of the existence of the United States. It was exercised with respect to most, but not all, lighthouse sites, with respect to various forts and arsenals, and with respect to a number of other individual properties. But search of appropriate records indicates that during this period it was often the practice of the Government merely to purchase the lands upon which its installations were to be placed and to enter into occupancy for the purposes intended, without also acquiring legislative jurisdiction over the lands."



"Federal reservation.--In Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), the Supreme Court approved a method not specified in the Constitution of securing legislative jurisdiction in the United States. Although the matter was not in issue in the case, the Supreme Court said (p. 526):



"The land constituting the Reservation was part of the territory acquired in 1803 by cession from France, and until the formation of the State of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original States, that is, with the same rights of political dominion and sovereignty, subject like them only to the Constitution of the United States. Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion and legislative power of the United States over the Reservation so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general government. But from some cause, inadvertence perhaps, or over-confidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made."(See also United States v. Gratoit concerning post-statehood reservation of mines, salt licks, salt springs, and mill seats in the (former) Eastern ceded territories.)



"State cession.--In the same case, ( Fort Leavenworth R.R. v. Lowe,) the United States Supreme Court sustained the validity of an act of Kansas ceding to the United States legislative jurisdiction over the Fort Leavenworth military reservation, but reserving to itself the right to serve criminal and civil process in the reservation and the right to tax railroad, bridge, and other corporations, and their franchises and property on the reservation. In the course of its opinion sustaining the cession of legislative jurisdiction , the Supreme Court said (p. 540):



"... Though the jurisdiction and authority of the general government are essentially different form those of the State, they are not those of a different country; and the two, the State and general government, may deal with each other in any way they may deem best to carry out the purposes of the Constitution. It is for the protection and interests of the States, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the States. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the States as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the State would be desirable, we do not perceive any objection to its grant by the Legislature of the State. Such cession is really as much for the benefit of the State as it is for the benefit of the United States."



The United States v. Worrall, 32 U.S. 384 (1798):



"Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary, and an inseparable, concomitant. But the existence of the Federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature [bribery of a tax collector], tending to obstruct and pervert the administration of its affairs, an appeal must be made to the State tribunals, or the offenders must escape with absolute impunity. The power to punish misdemeanors, is originally and strictly a common law power; of which, I think, the United States are constitutionally possessed. It might have been exercised by Congress in the form of a Legislative act; but, it may, also, in my opinion be enforced in a course of Judicial proceeding. Whenever an offence aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognizable under their authority; and, consequently, it is within the jurisdiction of this Court, by virtue of the 11th section of the Judicial act. [2 U.S. 384, 396] The Court being divided in opinion, it became a doubt, whether sentence could be pronounced upon the defendant; and a wish was expressed by the Judges and the Attorney of the District, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the Supreme Court, upon the important principle of the discussion: But the counsel for the prisoner did not think themselves authorised to enter into a compromise of that nature. The Court, after a short consultation, and declaring, that the sentence was mitigated in consideration of the defendant's circumstances, proceeded to adjudge,



"That the defendant be imprisoned for three months; that he pay a fine of 200 dollars; and that he stand committed, 'till this sentence be complied with, and the costs of prosecution paid." [The United States v. Worrall, 32 U.S. 384 (1798)]



Jones v. Mayer, 392 U.S. 409 (1968): An "act of Congress" that has national scope and operates inside the states



"As its text reveals, the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U.S. 3, 20 . It has never been doubted, therefore, "that the power vested in Congress to enforce the article by appropriate legislation," ibid., includes the power to enact laws "direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not." Id., at 23. 74



"Thus, the fact that 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective [392 U.S. 409, 439] can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. The constitutional question in this case, therefore, comes to this: Does the authority of Congress to enforce the Thirteenth Amendment "by appropriate legislation" include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes.



"By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." Civil Rights Cases, 109 U.S. 3, 20 . Whether or not the Amendment itself did any more than that - a question not involved in this case - it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Ibid. (Emphasis added.)



Those who opposed passage of the Civil Rights Act of 1866 argued in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. 75 Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. 76 And the majority leaders in Congress - who were, after all, the authors of the Thirteenth Amendment - had no doubt that its Enabling Clause contemplated the sort of positive legislation that [392 U.S. 409, 440] was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then



"the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end." 77



"Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational [392 U.S. 409, 441] one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery - its "burdens and disabilities" - included restraints upon "those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." Civil Rights Cases, 109 U.S. 3, 22 . 78 Just as the Black Codes, enacted after the Civil [392 U.S. 409, 442] War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men [392 U.S. 409, 443] into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.



"Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom - freedom to "go and come at pleasure" 79 and to "buy and sell when they please" 80 - would be left with "a mere paper guarantee" 81 if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep." [Jones v. Mayer, 392 U.S. 409 (1968)]wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep." [Jones v. Mayer, 392 U.S. 409 (1968)]

[suijuris]

While the Fourteenth Amendment "was intended primarily for the benefit of the negro race, it also confers the right of citizenship upon persons of all other races, white, yellow, or red, born or naturalized in the United States and subject to the jurisdiction thereof." In re Rodriguez, W.D.Tex.1897, 81 F. 337.



"The Constitution of the United States [before the Fourteenth Amendment] does not declare who are and who are not citizens, nor does it attempt to describe the constituent elements of citizenship; it leaves that quality where it found it resting upon the fact of home birth and upon the laws of the several states." 1862, 10 Op.Atty.



Congress possesses authority to create standards for attainment of United States citizenship by foreign-born persons. Gonzalez de Lara v. U. S., C.A.5 (Tex.) 1971, 439 F.2d 1316. Aliens 60;



It is within the exclusive power of Congress to confer the privilege of citizenship, and the court must strictly construe acts granting such privilege. U.S. v. Dang Mew Wan Lum, C.C.A.9 (Hawai'i) 1937, 88 F.2d 88. Aliens 60;



Congress power over Indian tribes is plenary. Goodluck v. Apache County, D.C.Ariz.1975, 417 F.Supp. 13, affirmed 97 S.Ct. 225, 429 U.S. 876, 50 L.Ed.2d 160.



Once American citizenship has been recognized or conferred, Congress may not remove the status; it is for the citizen to abandon the citizenship voluntarily. Bellei v. Rusk, D.C.D.C.1969, 296 F.Supp. 1247, probable jurisdiction noted 90 S.Ct. 69, 396 U.S. 811, 24 L.Ed.2d 64, reversed on other grounds 91 S.Ct. 1060, 401 U.S. 815, 28 L.Ed.2d 499.



Naturalization is under the control of Congress, and aliens have no rights save as they are ordained by Congress. Petition of Caputo, E.D.N.Y.1954, 118 F.Supp. 870.



Congress may exclude aliens from the United States, prescribe the conditions under which they may enter, provide for their supervision, regulate their conduct, and fix their rights while in the United States. U.S. v. Frederick, S.D.Tex.1943, 50 F.Supp. 769, affirmed 146 F.2d 488, certiorari denied 65 S.Ct. 866, 324 U.S. 861, 89 L.Ed. 1418.



On the purpose of 18 USC 1401:

Former chapter 11 of this title was passed for purpose of effecting a complete revision of the laws relative to nationality in light of new conditions, to reconcile seemingly conflicting provisions of different statutes, and to facilitate naturalization of worthy candidates while protecting the United States against adding to its body of citizens persons who would be a potential liability rather than an asset. In re Thenault, D.C.D.C.1942, 47 F. Supp. 952.



Subsection (a)(7) of this section pertaining to who shall be nationals and citizens at birth, is not retroactive, and plaintiff whose claim to citizenship rests on single contention that such subsection by its retroactive application gives her that status, is not a citizen. Wolf v. Brownell, C.A.9 (Wash.) 1957, 253 F.2d 141, certiorari denied 78 S.Ct. 1393, 357 U.S. 942, 2 L.Ed.2d 1555, rehearing denied 79 S.Ct. 18, 358 U.S. 859, 3 L.Ed.2d 94. See, also, D'Alessio v. Lehman, C.A.Ohio 1961, 289 F.2d 317, certiorari denied 82 S.Ct. 41, 368 U.S. 822, 7 L.Ed.2d 27.



Subsection (a)(7) of this section liberalizing derivative citizenship requirement to provide for five years of residence in United States by parent after age of 14 years and prior to birth of citizenship-seeking child did not apply retroactively to persons born before its effective date. Palomo v. Mitchell, S.D.Tex.1972, 361 F.Supp. 455, affirmed 474 F.2d 1345.



The status of a foreign born person as an American citizen because of previous naturalization of his father was to be determined in accordance with requirements of such laws as were in effect at time of the person's birth and subsequent related events, where the person was born before the adoption of former chapter 11 of this title. Schaufus v. Attorney General of U.S., D.C.Md.1942, 45 F.Supp. 61.



It is domestic rather than international law which in most instances determines the acquisition or loss of nationality. Cabebe v. Acheson, C.A.9 (Hawai'i) 1950, 183 F.2d 795.



Citizenship is not regulated by international law but depends entirely on municipal law, and in United States acquisition of citizenship is governed solely by Constitution and by Acts of Congress. Tomasicchio v. Acheson, D.C.D.C.1951, 98 F.Supp. 166.



The status of persons as citizens or aliens depends entirely upon the Constitution of the United States and the Acts of Congress pursuant thereto. Johnson v. U.S., Ct.Cl.1893, 29 Ct.Cl. 1, affirmed 16 S.Ct. 377, 160 U.S. 546, 40 L.Ed. 529. See, also, Mackenzie v. Hare, 1913, 134 P. 713, 165 Cal. 776, L.R.A.1916D, 127, Ann.Cas.1915B, 261, affirmed 36 S.Ct. 106, 239 U.S. 299, 60 L.Ed. 297, Ann.Cas.1916E, 645.



A question as to status or citizenship arising in the United States is determinable by our own law; or, if it arose on the high seas, or anywhere out of the territorial jurisdiction of another country, it would be a question either under our own law or the public law, according to the circumstances under which the right was asserted or denied. 1867, 12 Op.Atty.Gen. 320.



Citizenship implies membership in a political society, the relation of allegiance and protection, identification with the state, and a participation in its functions, and while a temporary absence may suspend the relation between a state and its citizen, his identification with the state remains where he intends to return. Pannill v. Roanoke Times Co., W.D.Va.1918, 252 F. 910.



Mere residence in a foreign country, even by a naturalized American, has no effect upon such person's citizenship. U.S. v. Howe, S.D.N.Y.1916, 231 F. 546.



"Citizenship" is membership in a political society and imposes a duty of allegiance on the part of a member and a duty of protection on the part of society. U.S. v. Polzin, D.C.Md.1942, 48 F.Supp. 476.



The noun "citizen" has been defined to be one who enjoys the freedom and privileges of a city; a freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises; an inhabitant of a city; a townsman; a person, native, or naturalized, of either sex, who owes allegiance to a government and is entitled to reciprocal protection from it; one who is domiciled in a country, and who is a citizen, though neither native nor naturalized, in such a sense that he takes his legal status from such country. In English law, the term means an inhabitant of a city; the representative of a city, in Parliament. In American law, a citizen is one who, under the Constitution and laws of the United States, has a right to vote for Representatives in Congress and other public officers, and who is qualified to fill offices in the gift of the people; one of the sovereign people; a constituent member of the sovereignty, synonymous with the people; a member of the civil state, entitled to all its privileges. A person may be a citizen for commercial purposes and not for political purposes. Greenough v. Board of Police Com'rs of Town of Tiverton, R.I.1909, 74 A. 785, 30 R.I. 212, 136 Am.St.Rep. 953.



A citizen of the United States is a person of any race or color born within the limits of, or who has been naturalized under the laws of the United States. Prowd v. Gore, Cal.App. 2 Dist.1922, 207 P. 490, 57 Cal.App. 458.



The word "citizen," while not convertible with the word "resident," is often used synonymously with it, without any implication of political privileges. Prowd v. Gore, Cal.App. 2 Dist.1922, 207 P. 490, 57 Cal.App. 458.



All persons found within the limits of the government, whether their residence be permanent or temporary, are to be deemed citizens for jurisdictional purposes. Molyneux v. Seymour, Fanning & Co., Ga.1860, 30 Ga. 440, 76 Am.Dec. 662. See, also, Keerl v. Keerl, 1870, 34 Md. 21. Citizens 2;



A citizen is one who by birth, naturalization, or otherwise is a member of an independent political society called a "state," "kingdom," or "empire," subject to its laws, and entitled to its protection. Blanck v. Pausch, 1885, 113 Ill. 60.



Distinction between citizenship and electorship pervades the public law of the United States. 1857, 8 Op.Atty.Gen. 300.



In regard to the protection of our citizens in their rights at home and abroad, we have in the United States no law which divides them into classes or makes any difference whatever between them. 1859, 9 Op.Atty.Gen. 357.



The only classes of citizens are native born citizens and naturalized citizens, who did not acquire the status of citizens by birth. Zimmer v. Acheson, C.A.10 (Kan.) 1951, 191 F.2d 209.



There were only two types of "citizens," those who were native born and those who were naturalized, and there was no basis for differentiating between the status of those who were naturalized by court procedure prescribed by Congress and embraced Act of March 2, 1907, and former § 701 et seq. of this title, and those who became naturalized by a derivative right from their parents. Schaufus v. Attorney General of U.S., D.C.Md.1942, 45 F.Supp. 61.



A citizen of the United States is a citizen of the state wherein he resides. Myers v. Murray, Nelson & Co., C.C.S.D.Iowa 1890, 43 F. 695.



One may be a citizen of the United States without being a citizen of a state. Sharon v. Hill, C.C.Cal.1885, 26 F. 337, 11 Sawy. 290. See, also, Nichols v. Hill, C.C.Cal.1899, 92 F. 1; Hough v. Societe Electrique Westinghouse de Russie, D.C.N.Y.1916, 231 F. 341; Gardina v. Board of Registrars of Jefferson County, 1909, 48 So. 788, 160 Ala. 155; McDonel v. State, 1883, 90 Ind. 320.



An American citizen has two classes of privileges: (1) Those which he has as a citizen of the United States; and (2) those which he has as a citizen of the state where he resides. Ex parte Kinney, C.C.E.D.Va.1879, 14 F.Cas. 602, No. 7825.



U.S.C.A.Const. Amend. 14 citizenship in the United States is defined and is made independent of citizenship in a state, and the privileges and immunities secured by the Constitution are such as belong of right to citizens of all free states, and those which in the Constitution are secured to the people, either as against the action of the Federal or of the state government. U. S. v. Hall, C.C.S.D.Ala.1871, 26 F.Cas. 79, 3 Chi.Leg.N. 260, No. 15282.



With the cession of populated areas by the Crown of Spain to the United States, persons collectively became nationalized but not naturalized, and Spanish subjects residing in ceded territory became nationals of the United States unless provided otherwise by treaty. Cabebe v. Acheson, C.A.9 (Hawai'i) 1950, 183 F.2d 795.



Citizens of Phillippine Islands were not aliens, and owed allegiance to the United States. Roque Espiritu De La Ysla v. U.S., C.C.A.9 (Cal.) 1935, 77 F.2d 988, certiorari denied 56 S.Ct. 138, 296 U.S. 575, 80 L.Ed. 406.



On a transfer of territory by one nation to another the political relations between the inhabitants of the ceded territory and the former government were changed. Tobin v. Walkinshaw, C.C.N.D.Cal.1856, 23 F.Cas. 1346, 1 McAll. 186, No. 14070. Citizens 5;



Naturalized citizens of territory ceded from one nation to another, who owed allegiance, purely statutory, when released therefrom, were remitted to their original status. Tobin v. Walkinshaw, C.C.N.D.Cal.1856, 23 F.Cas. 1346, 1 McAll. 186, No. 14070.



Citizenship of child born of Spanish parents in the province of New Mexico in 1809 was discussed. De Baca v. U.S., Ct.Cl.1901, 37 Ct.Cl. 482.



Citizens of Panama who were residents of the Canal Zone at the time of the treaty between the United States and Panama, and who had not taken any affirmative action to retain citizenship in that republic, owed allegiance to the United States and were entitled to passports. 1907, 26 Op.Atty.Gen. 376.



Mere ignorance of petitioner's status as an American citizen at birth in a foreign country would not alone preclude petitioner from asserting American citizenship, provided petitioner had not lost such status by his subsequent acts. Schaufus v. Attorney General of U.S., D.C.Md.1942, 45 F.Supp. 61.



In order for person who is United States citizen by virtue of his birth to be subject to deportation, government must demonstrate that he has lost his United States citizenship through expatriation and assumed status of an alien. Jolley v. Immigration and Naturalization Service, C.A.5 (Ga.) 1971, 441 F.2d 1245, certiorari denied 92 S.Ct. 302, 404 U.S. 946, 30 L.Ed.2d 262. Aliens 53.1;



United States citizenship can be relinquished only voluntarily and not by legislative fiat. Jolley v. Immigration and Naturalization Service, C.A.5 (Ga.) 1971, 441 F.2d 1245, certiorari denied 92 S.Ct. 302, 404 U.S. 946, 30 L.Ed.2d 262.



Where United States citizen could have obeyed selective service system, an alternative he found impossible solely because of his own moral code, his renunciation of United States citizenship was "voluntary" for purposes of determining whether he was in fact an alien who could be deported. Jolley v. Immigration and Naturalization Service, C.A.5 (Ga.) 1971, 441 F.2d 1245, certiorari denied 92 S.Ct. 302, 404 U.S. 946, 30 L.Ed.2d 262.



"The law of nations 'is part of our law.' Hilton v. Guyot, N.Y.1895, 16 S.Ct. 139, 159 U.S. 163, 40 L.Ed. 95. It provides that in general all persons are citizens (subjects) of the countries (governments, sovereigns) of their birth, and in consequence owe them permanent allegiance. This status cannot be changed without their countries' consent. Shanks v. Dupont, S.C.1830, 3 Pet. 245, 7 L.Ed. 666. A person may be admitted to citizenship in another country without his country's consent, but the only result is that thereafter he is a citizen of two countries. His allegiance and obligations to the country of his birth are not diminished, and in so far as they conflict with his new allegiance, 'he becomes a citizen of the new country at his peril.' Talbot v. Janson, S.C.1795, 3 Dall. 164, 169, 1 L.Ed. 540." In re Siem, D.C.Mont.1922, 284 F. 868.



Children of Danish mother and American father were citizens for purposes of child custody proceeding even though children had been naturalized in Denmark. Zaubi v. Hoejme, W.D.Pa.1980, 530 F.Supp. 831.



One who becomes a citizen of United States by reason of birth retains it even though by law of another country he is also a citizen of it, and American citizenship thus acquired can be lost only through voluntary action, or through operation of a treaty or of an act of Congress. Lee Hong v. Acheson, N.D.Cal.1953, 110 F.Supp. 60.



The primary legal test by which United States citizenship is determined is place of birth. Kiyokuro Okimura v. Acheson, D.C.Hawai'i 1951, 99 F.Supp. 587, vacated on other grounds 72 S.Ct. 293, 342 U.S. 899, 96 L.Ed. 674.



Complaint seeking declaration of citizenship and declaratory judgment holding retention requirements unconstitutional, which did not seek redress from Secretary of State regarding denial of application for passport, failed to state claim against Secretary of State. LeBrun v. Thornburgh, D.N.J.1991, 777 F.Supp. 1204.



"The distinguishing and supreme obligation of citizenship and its permanent allegiance is military service. It has its antecedent in the feudal system wherein the vassal makes oath of fealty to his lord and serves him in war, as a consideration and payment for the land and protection he receives from his lord. So the citizen born to or making oath of allegiance likewise renders military service to the country in payment of and in consideration for the advantages, rights, and protection it extends to him. As these latter are the possession of citizens, and not of aliens, the consequence is that the obligation of military service that attends them attaches only when the alien is admitted to citizenship. It cannot attach before admission. * * * To render military service, any country may recall its citizens from the ends of the earth. For these reasons, without his country's consent, a person neither can be rightfully compelled to enter the military service of a country wherein he is an alien, nor can he rightfully voluntarily do so. If either wrong against his country is committed, for the first it may have just cause for war, and for the second it may pursue and punish him. * * * All that can be rightfully exacted of an alien is the obligation of temporary allegiance due to the country wherein he is alien, viz. respect for municipal law, and civil duties of assistance and defense against calamities and robbers, pirates, and other evil persons who are enemies of no country in particular, but of society in general. * * * In respect to change of citizenship and allegiance, all leading countries, including this country and Norway, by treaties and statutes now give advance and general consent thereto." In re Siem, D.C.Mont.1922, 284 F. 868.



The citizenship of a person who becomes a citizen at birth must be deemed to continue unless he has been deprived of his citizenship through the operation of a treaty or congressional enactment or by his voluntary action in conformity with applicable legal principles. In re Bolter, S.D.Cal.1946, 66 F.Supp. 566.



In the absence of proof to the contrary, every man is presumed to be a citizen of the country in which he resides. Gorman v. Forty Second St. M. & St. N. Ave. Ry. Co., N.Y.A.D. 3 Dept.1924, 203 N.Y.S. 632, 208 A.D. 214 .



A wife, whose first husband resided and was employed in New York City for over two years, was presumed to be a citizen of the United States at the time of husband's death, and her citizenship was presumed to continue thereafter. Gorman v. Forty Second St. M. & St. N. Ave. Ry. Co., N.Y.A.D. 3 Dept.1924, 203 N.Y.S. 632, 208 A.D. 214.



Where citizenship was not specifically alleged but residence was shown, legal presumption arose that plaintiff being natural person was a citizen. Atchley v. Varner, Okla.1929, 280 P. 616, 138 Okla. 156.



Where it was shown that one resided in Massachusetts, there was a presumption that he was a citizen of the United States, especially where it appeared that he was an officer in the United States merchant marine service. Buckley v. McDonald, Mont.1906, 84 P. 1114, 33 Mont. 483.



The law presumes all persons who reside here to be citizens of the United States, until the contrary appears. Jantzen v. Arizona Copper Co., Ariz.1889, 20 P. 93, 3 Ariz. 6. See, also, Quinby v. Duncan, Del.1846, 4 Har. 383; State v. Beackmo, Ind.1843, 6 Blackf. 488; Garfield M. & M. Co. v. Hammer, 1886, 8 P. 153, 6 Mont. 53 affirmed 9 S.Ct. 548, 130 U.S. 291, 32 L.Ed. 964.



It was presumed that the political status of an alien continued, and the mere fact of long residence in this country was not sufficient to overcome this presumption. Ehrlich v. Weber, Tenn.1905, 88 S.W. 188, 114 Tenn. 711. See, also, State v. Jackson, 1907, 65 A. 657, 79 Vt. 504.



Foreigners by birth are prima facie aliens. White v. White, 1859, 59 Ky. 185, 2 Metc. 185.



The mere fact that a man resided in Canada, and had for many years, was not ground for presuming that he was an alien. Gilman v. Thompson, 1839, 11 Vt. 643, 34 Am.Dec. 714.



Citizenship cannot be presumed from the holding of real estate or of office. Dryden v. Swinburne, W.Va.1882, 20 W.Va. 89.



Alienage must be proved by him who asserts it. Moore v. Wilson's Adm'rs, Tenn.1837, 18 Tenn. 406.



A passport issued to a Chinese person by the Secretary of State was not evidence of the citizenship of such person in the United States. Edsell v. D. Charlie Mark, C.C.A.9 (Wash.) 1910, 179 F. 292, 103 C.C.A. 121.



Defendant met requirements for United States citizenship, for purposes of diversity jurisdiction, even though government of Costa Rica may also have recognized his citizenship, where defendant had registered for selective service, held American passport, and voted in United States presidential election. Las Vistas Villas, S.A. v. Petersen, M.D.Fla.1991, 778 F.Supp. 1202, affirmed 13 F.3d 409.



State court decree under West's Cal.Ann.Health and Safety Code § 10600 et seq. establishing fact of birth in California is evidence of birthplace, but not conclusive proof of citizenship. Ex parte Lee Fong Fook, D.C.Cal.1948, 74 F.Supp. 68, remanded on other grounds 170 F.2d 245, certiorari denied 69 S.Ct. 604, 336 U.S. 914, 93 L.Ed. 1077.



Proof of alleged citizenship need not be clear and convincing, and no special quantum of proof should be exacted from any person claiming American citizenship merely because of his racial origin. Ng Yip Yee v. Barber, C.A.9 (Cal.) 1955, 225 F.2d 707.



When an indictment was attacked because of noncitizenship of grand juror, the grand juror could testify to the place of his birth and the facts surrounding his father's naturalization. State v. Chamberlin, Iowa 1917, 163 N.W. 428, 180 Iowa 685.



Evidence of declarations of one who could not be produced as a witness at the trial that he was a citizen, that he had voted at territorial elections, that his name appeared on the election register, and that he had located mining claims under the declaration that he was a citizen of the United States, was admissible to prove such citizenship. Providence Gold-Min. Co. v. Burke, Ariz.1899, 57 P. 641, 6 Ariz. 323.



"For the officers to require more conclusive evidence than the petitioner has furnished is to demand proof beyond all doubt and to a moral certainty, and such a requirement would constitute a fundamental error in the application of the law." Ex parte Cheung Tung, W.D.Wash.1923, 292 F. 997.



Uncontradicted evidence established the citizenship of a person of Chinese descent arrested for deportation. U.S. v. Charlie Dart, N.D.Ga.1918, 251 F. 394. Aliens 32(8)



In action for declaration of United States citizenship on behalf of a Chinese born male claimed to be the son of an American citizen, refusal of travel documents by the Consul General based on lack of sufficient proof of identity was a denial of nationality as basis of jurisdiction of the action. Soo Hoo Doo Wing v. Dulles, D.C.Conn.1956, 147 F.Supp. 862.



The evidence r