AUGUST 30, 1921, 1 COMP. GEN. 95

AUGUST 30, 1921, 1 COMP. GEN. 95

JAPANESE - CERTIFICATES OF NATURALIZATION AS AFFECTING PAY STATUS IN ARMY, NAVY, OR MARINE CORPS. ACCOUNTING OFFICERS OF THE GOVERNMENT WILL ACCEPT CERTIFICATES OF NATURALIZATION ISSUED BY CERTAIN FEDERAL COURTS, UNDER PROVISIONS OF THE ACT OF MAY 9, 1918, 40 STAT., 542, TO JAPANESE WHO SERVE IN THE UNITED STATES ARMY, NAVY, OR MARINE CORPS AS SUFFICIENT EVIDENCE THAT THE GRANTEES OF THE CERTIFICATES ARE LAWFUL CITIZENS OF THE UNITED STATES AND ENTITLED TO PAY UNDER GENERAL ORDER NO. 34, DURING REENLISTMENT PERIODS IN THE NAVY, OR ANY OTHER CHARACTER OF PAY THAT MAY ACCRUE TO THEM BY REASON OF SUCH CITIZENSHIP AND THEIR SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR RESERVES, NOTWITHSTANDING THE FACT THAT OTHER FEDERAL COURTS MAY REFUSE TO ISSUE CERTIFICATES OF NATURALIZATION TO JAPANESE UNDER SAID ACT. 27 COMP. DEC., 770, OVERRULED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 30, 1921:

BY YOUR DIRECTION I HAVE THE LETTER OF THE JUDGE ADVOCATE GENERAL OF AUGUST 10, 1921, REQUESTING REVISION OF THE ACTION OF THE AUDITOR FOR THE NAVY DEPARTMENT IN DISALLOWING BY SETTLEMENT NO. 68765, DATED MARCH 29, 1921, THE CLAIM OF FRANK FUJUWARA, CABIN STEWARD, UNITED STATES NAVY, FOR PAY UNDER GENERAL ORDER NO. 34, FROM MAY 19, 1919, TO FEBRUARY 25, 1920.

FUJUWARA HOLDS CERTIFICATE OF NATURALIZATION SHOWING THAT HE WAS "ADMITTED AS A CITIZEN OF THE UNITED STATES OF AMERICA" ON THE 19TH DAY OF MAY, 1919, BY THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA. THE CERTIFICATE WAS GRANTED UNDER AUTHORITY OF THE ACT OF MAY 9, 1918, 40 STAT., 542. IT APPEARS THAT THE FEDERAL COURTS ARE DIVIDED IN THEIR OPINION RELATIVE TO WHETHER THE ACT OF MAY 9, 1918, EXTENDS RIGHT OF NATURALIZATION TO JAPANESE IN THE MILITARY OR NAVAL SERVICE, AND THAT SOME COURTS HAVE DENIED THEM NATURALIZATION.

THE AUDITOR FOR THE NAVY DEPARTMENT SUBMITTED TO THE COMPTROLLER OF THE TREASURY FOR APPROVAL OR DISAPPROVAL HIS OPINION THAT JAPANESE WHO HAVE BEEN GRANTED CERTIFICATES OF NATURALIZATION BY THE LOWER COURTS OF THE UNITED STATES UNDER THE ACT OF MAY 9, 1918, ARE NOT ENTITLED TO THE BENEFITS OF THE INCREASED PAY PROVIDED IN GENERAL ORDER NO. 34 OF NOVEMBER 28, 1906. THE COMPTROLLER IN DECISION OF MARCH 3, 1921, 27 COMP. DEC., 770, STATED THAT---

IN VIEW OF THE DIVERSITY OF OPINION IN THE INFERIOR FEDERAL COURTS AS TO WHETHER JAPANESE MAY BE NATURALIZED UNDER THE ACT OF MAY 9, 1918, 40 STAT., 542, NOTWITHSTANDING SECTION 2169 REVISED STATUTES, AND IN THE ABSENCE OF AN AUTHORITATIVE DECISION BY THE UNITED STATES SUPREME COURT, THE AUDITOR'S DECISION IS APPROVED.

UPON REQUEST OF THE SECRETARY OF THE NAVY FOR A RECONSIDERATION OF THIS QUESTION THE COMPTROLLER OF THE TREASURY IN LETTER OF APRIL 7, 1921, REFUSED TO MODIFY SAID DECISION AS TO RIGHT TO PAY UNDER GENERAL ORDER 34, EXCEPT AS TO PAYMENTS MADE BY DISBURSING OFFICERS PRIOR TO THE DATE OF DECISION MARCH 3, 1921, WHICH PAYMENTS HE STATED WOULD NOT BE DISTURBED. IN THAT LETTER HE ALSO MADE THE FOLLOWING STATEMENT:

AS TO TRANSFER TO THE FLEET NAVAL RESERVE OF JAPANESE HOLDING NATURALIZATION CERTIFICATES ISSUED UNDER AUTHORITY ASSUMED TO BE GIVEN BY THE ACT OF MAY 9, 1918, THE LEGALITY OF THESE TRANSFERS IN THE LAST ANALYSIS MUST REST UPON THE DETERMINATION BY THE COURTS OF THE VALIDITY OF THE NATURALIZATION CERTIFICATES HELD BY THE MEN TRANSFERRED. AS TO TRANSFERS ACCOMPLISHED PRIOR TO MARCH 3, 1921, I SEE NO OBJECTION TO CONTINUING THE MEN ALREADY TRANSFERRED IN THEIR PRESENT STATUS IN THE FLEET NAVAL RESERVE. THE NAVY DEPARTMENT'S ACTION IN THUS CHANGING THE STATUS OF THE MEN BY TRANSFERRING THEM TO THE NAVAL RESERVE, WHERE CITIZENSHIP IS A REQUISITE, IN THE PRESENT STATE OF THE LAW, IS OF DOUBTFUL LEGALITY. AS, HOWEVER, THE TRANSFERS HERETOFORE MADE WERE ACCOMPLISHED UNDER WHAT SEEMS TO HAVE BEEN A MISAPPREHENSION OF DECISIONS OF THIS OFFICE, THEIR RIGHT TO MEMBERSHIP IN THE FLEET NAVAL RESERVE WILL NOT BE CHALLENGED BY THE ACCOUNTING OFFICERS UNTIL THEIR STATUS AS TO CITIZENSHIP SHALL HAVE BEEN AUTHORITATIVELY DETERMINED AS HEREIN INDICATED.

SINCE RIGHT TO MEMBERSHIP IN THE NAVAL RESERVE FORCE IS LIMITED TO CITIZENS OF THE UNITED STATES, 39 STAT., 587, IT FOLLOWS THAT THE COMPTROLLER'S ACTION IN THUS RECOGNIZING SUCH CERTIFICATES OF NATURALIZATION WITH RESPECT TO THE STATUS OF MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AND REFUSING TO RECOGNIZE THE SAME CERTIFICATES AS CONFERRING RIGHT TO PAY UNDER GENERAL ORDER 34 IS QUESTIONABLE. SUCH RECOGNITION RESULTS IN ALLOWING THE MEN TO CONTINUE IN RECEIPT OF RETAINER PAY, WHICH IS JUST AS MUCH PREDICATED ON CITIZENSHIP AS IS PAY UNDER GENERAL ORDER 34, AND WHICH IS MUCH GREATER THAN PAY UNDER THAT ORDER.

A CERTIFICATE OF NATURALIZATION IS A GRANT OF POLITICAL PRIVILEGES, AND, LIKE OTHER PUBLIC GRANTS, IS SUBJECT TO REVOCATION OR CANCELLATION IF FOUND TO HAVE BEEN UNLAWFULLY OR FRAUDULENTLY PROCURED. SUCH CERTIFICATES IS PRIMA FACIE EVIDENCE THAT THE GRANTEE IS LAWFULLY ENTITLED TO CITIZENSHIP. THAT EVIDENCE, HOWEVER, IS REBUTTABLE BY EVIDENCE THAT IT WAS UNLAWFULLY OR FRAUDULENTLY PROCURED. A CERTIFICATE ISSUED TO ONE OF A CLASS OF PERSONS TO WHOM THE LAW POSITIVELY DENIES ADMISSION TO CITIZENSHIP WOULD BE NULL AND VOID ON ITS FACE.

IT FOLLOWS THAT A CERTIFICATE OF NATURALIZATION, THOUGH GRANTED BY THE COURT IN PROCEEDINGS IN WHICH THE GOVERNMENT WAS HEARD IN OPPOSITION, AS PROVIDED IN SECTION 11 OF THE ACT OF JUNE 29, 1906, 34 STAT., 599, DOES NOT CONFER UPON THE GRANTEE VESTED RIGHTS AS AGAINST THE GOVERNMENT, SINCE SUCH IS NOT AN ADVERSARY PROCEEDING WHICH ESTOPS THE GOVERNMENT FROM THEREAFTER QUESTIONING THE VALIDITY OF THE CERTIFICATE.

WHILE IT IS NOT WITHIN THE PROVINCE OF THIS OFFICE TO FINALLY DETERMINE WHETHER A CERTIFICATE OF NATURALIZATION WAS LAWFULLY PROCURED, IT IS WITHIN THE AUTHORITY OF THIS OFFICE TO DETERMINE WHETHER SUCH CERTIFICATE IS SUFFICIENT EVIDENCE TO ESTABLISH THE GRANTEE'S RIGHT TO PAY, WHICH CAN LEGALLY ACCRUE ONLY TO CITIZENS OF THE UNITED STATES; AND IN ALL CASES WHERE THERE IS EVIDENCE TO SHOW THAT THE CERTIFICATE WAS UNLAWFULLY OR FRAUDULENTLY PROCURED, IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO WITHHOLD BENEFITS ACCRUING TO CITIZENS ONLY.

IN THE CASE IN QUESTION THE CERTIFICATE OF NATURALIZATION WAS GRANTED UNDER AUTHORITY OF THE ACT OF MAY 9, 1918, 40 STAT., 542, WHICH ACT PRESCRIBES THE PROCEDURE AND REQUIREMENTS NECESSARY ON THE PART OF PERSONS SERVING AND WHO HAVE SERVED IN THE MILITARY AND NAVAL FORCES OF THE UNITED STATES TO SECURE CERTIFICATES OF NATURALIZATION. UNDER AUTHORITY OF THAT ACT SOME OF THE FEDERAL COURTS ISSUED CERTIFICATES OF NATURALIZATION TO JAPANESE IN THE MILITARY AND NAVAL SERVICE, WHILE OTHER FEDERAL COURTS REFUSED TO ISSUE CERTIFICATES OF NATURALIZATION TO SUCH JAPANESE.

THE FACT THAT SOME OF THE COURTS REFUSED TO ISSUE SUCH CERTIFICATES, WHILE IT MAY CREATE A DOUBT AS TO THE AUTHORITY CONFERRED BY THE ACT, DOES NOT PROVE THAT THE ACT CONFERS NO SUCH AUTHORITY, ESPECIALLY SINCE OTHER FEDERAL COURTS HAVE CONSTRUED THAT ACT AS AUTHORIZING THE NATURALIZATION OF JAPANESE IN THE UNITED STATES MILITARY OR NAVAL SERVICE.

UNDER THE PRESENT STATUS OF THE CONSTRUCTION OF THE ACT OF MAY 9, 1918, BY THE COURTS IT CAN NOT BE SAID THAT THERE IS NO AUTHORITY OF LAW FOR ISSUING CERTIFICATES OF NATURALIZATION TO JAPANESE IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, AND SINCE SUCH CERTIFICATES WERE ISSUED UNDER THE COURTS' DECISIONS THAT FULL AUTHORITY OF LAW EXISTED THEREFOR, I AM OF OPINION THAT IS THE DUTY OF THE ACCOUNTING OFFICERS TO ACCEPT SUCH CERTIFICATES AS SUFFICIENT EVIDENCE THAT THE GRANTEES THEREOF ARE LAWFUL CITIZENS OF THE UNITED STATES AND ENTITLED TO ANY PAY THAT MAY ACCRUE TO THEM BY REASON OF SUCH CITIZENSHIP AND THEIR SERVICE IN THE ARMY OR THE NAVY.