Naturalization In re Application of Izzo for Citizenship. -Marriage of Mother to Citizen of the United States-Effect of. An applicant for naturalization as a citizen of the United States was born in Italy on June 6, 1883. When about four years of age, his parents came to the United States and in 1888 his father died. After his father's death the child was returned to Italy. In 1889 his mother married an Italian subject, who afterwards on January 28, 1897, duly naturalized. On June 29, 1898, the applicant re turned to this country where he has since continuously resided. Held: That the marriage of his mother with a naturalized citizen of the United States while applicant was still a minor made him a citizen of this country. No. 15623. U. S. District Court, Western District of Pennsylvania. No appearances entered. THOMSON, J., March 3, 1916.-The applicant in this case would appear to be entitled to admission to citizenship were it not for the question as to whether, under the existing facts, he is not already a citizen of the United States. The facts of the case are these: The applicant was born in Italy on June 6, 1883. When about four years of age, his parents came to the United States and in 1888 his father died. After his father's death the child was returned to Italy. In 1889 his mother married one Antonio Vischo, an Italian subject, who was afterwards, on January 28, 1897, duly naturalized. On June 29, 1898, the applicant returned to this country, where he has since continuously resided. Having been informed on his arrival, at the age of 21 years, that he was a citizen of the United States he exercised the right of suffrage on several occasions. The question then is did the marriage of his mother, with a naturalized citizen of the United States, make the applicant a citizen of this country? The authorities seem to hold that the minor children of a widow are naturalized by the mother's marriage to an American citizen, or to one who becomes an American citizen during the minority of the children. It was so held by Justice Harland in the case of the United States vs. Kellar, 13 Fed. Rep., p. 82. It was there laid down that upon the marriage of a resident Alien woman with a naturalized citizen, she as well as her infant son, dwelling in this country, became citizens of the United States as fully as if they had become such in the special mode prescribed by the Naturalization Laws. The Court held that the mother became a citizen by force alone of her marriage with a naturalized citizen and that a child, then a minor, dwelling in the United States also became ipso facto a citizen. To the same effect is Dale vs. Irwin, 78 Ill., 170, and United States vs. Rodgers, 144 Fed. Rep., 711. The reasoning adopted by Justice Harland in the Kellar case seems to me entirely satisfactory. In this case there would appear to be no question that the mother of the applicant belonged to the class of persons who, under the Acts of Congress, might have been lawfully naturalized, and the Act of Congress has declared that "Any woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen." Her marriage therefore, in this case, under the plain words of the Statute, made her a citizen as fully as if she had complied with all the provisions of the Statutes upon the subject of naturalization. In Kelley vs. Owen, 7 Wall., 496: In construing the Act of February 10, 1855, which is similar to Sec. 1994 of the Revised Statutes, the Supreme Court said: "As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous Acts of Congress provide. The terms 'married' or 'who shall be married,' do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to the state of marriage. They mean that whenever a woman who, under previous acts, might be naturalized, is in a state of marriage to a citizen, In re Application of Izzo for Citizenship. whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. His citizenship, whenever it exists, confers, under the act, citizenship upon her." The purpose of the act, as the Court said, was to allow the citizenship of the wife to follow that of the husband without the necessity of any application for naturalization on her part. In this case, the applicant, a minor, residing in the United States, and his mother a citizen, by virtue of her existing marriage with a naturalized citizen of the United States, became himself a citizen. This being true, he is not entitled to have this particular application granted, if for no other reason, because it would be a vain thing as he is already a citizen of the United States. The application is therefore denied. Tresca vs. Tresca. Divorce Desertion-Subpoena Prematurely Issuance Of. Where a divorce is sought on the ground of desertion, and it appears that the alleged desertion took place within six months of the time the parties separated, a divorce will be refused as the defect is statutory and more than an irregularity in the proceeding. In Divorce. No. 1602 July Term, 1913. C. P. Allegheny County. Jacob Margolis, for libellant. No appearance for respondent. SWEARINGEN, J., March 14, 1916.-This case came upon the Argument List and was submitted to the Court upon the Master's Report. He recommended that a decree of divorce be granted. The record shows that the Libel was filed on May 22, 1913, and an Order was then made that a subpoena be awarded, returnable to the first Monday of July, 1913. The allegation in the Libel is that the Respondent deserted the Libellant on March 9, 1913. It therefore appears that the Libel was prematurely filed. How this happened to be overlooked by the Court we cannot recall, as it appears that the writer of this Opinion signed the Order awarding the subpoena. The record shows that the Respondent was not served personally. It does appear that the alias subpoena was not returned until after the publication of notice required by law. This, however, may be but a mere irregularity. We are only calling attention to the same for the purpose of noting the carelessness which appears in this record. The question then arises whether or not the Respondent was properly in Court, for the purposes of this case. The statute provides that, where a desertion has occurred, the injured party may present his or her Libel not less than six months after the alleged desertion, and that no decree shall be entered until more than two years has lapsed since the date of the desertion. In this case it appears that the Libel was presented and the subpoena awarded much less than six months after the date of the alleged desertion. This being a statutory proceeding, the requirements thereof must be strictly observed, especially when there has been no personal service upon the Respondent. Therefore, we are of opinion that the presentation of the Libel before the expiration of the six-months period is more than a mere irregularity; it is fatal to the Libellant's case. We have read the testimony that was taken, and we are obliged to say that it is quite unsatisfactory. The Libellant in her testimony undertakes to show that probably the alleged desertion occurred long prior to the time named in the Libel. But the testimony as to the alleged desertion is quite meager. It does appear that these parties separated, but it is not made Tresca vs. Tresca. clear just when this occurred. Besides, it is far from certain that the desertion was wilful and malicious within the meaning of the statute. There is too much uncertainty in this testimony to justify the granting of a decree in divorce. Accordingly, the decree for which the Libellant prayed must be refused. Com. ex rel. vs. St. Paul's Orphans' Asylum. Habeas Corpus· Orphans' Asylum-Support of Children-Payments On a habeas corpus, an orphan asylum will be required to surrender the custody of children placed in the institution when the parents separated but afterward became reconciled and desired to have their children under their own control. The asylum has no legal claim to retain their custody even when the promised payments for their support have not been made, and the Court has no authority to direct the father or mother to pay anything for the past support of their children while in the asylum. Habeas Corpus. No. 1859 July, Term, 1914. C. P Allegheny County. Wm. T. Tredway, for plaintiff. Charles D. Gillespie, for defendant. SHAFER, P. J., February 10, 1916.-The writ is to obtain possession of three children of the relator, of the ages respectively of six, four and three years. It appears from the evidence that over a year ago the father and mother of these children ceased to live together and quarreled as to the custody of them, the father of the children and his father-in-law claiming them on the one part and the mother on the other, and that they were all at that time given into the custody of the mother, to be placed in St. Paul's Orphans' Asylum. It further appears that the father and mother and the father of the mother are reconciled, that the mother is living with her father in Coraopolis, and that all the parties are desirous that the children should be placed in the care of the mother to be kept with her at the house of her father, who is a foreign banker at Coraopolis and well able to take care of them. While the mother, according to her own admission, was not as truthful as she might have been in her allegations when she was contending with her husband about the children, there is no evidence otherwise that she is not a person of good moral character and there is no evidence that her father is not a proper person to have control of the children with her. Under these circumstances the respondent can have no legal claim to the retention of the children. The respondent has kept these children for some eighteen months and received very little from the mother on account of their keeping. It is admitted, however, that they were taken with the understanding that she should pay what she could, and the respondent does not claim to retain custody of them on that ground. While it is not in our power to direct the father or mother to pay anything to the respondent for the past support of these children we are very clearly of opinion that she or her husband or her father ought to make a reasonable payment, and their conduct in this respect may have some influence hereafter in determining any questions which may arise in regard to the children, involving their fitness to take care of them. It is therefore ordered that the children named in the writ, namely, Joseph A. Ludivici, Henry Arthur Ludivici and Mary Stella Ludivici, be delivered over by the respondent to the custody of the relator, or of his wife, the mother of the children, who joins with him in this proceeding, these children having been left, by agreement, in the custody of the respondent until the determination of this case. In re Application for License by Joseph Fleming & Son Co. Liquor License-Drug Company-Corporate Power-Violations of Law. Upon proof of violation of the liquor laws, the duty of the License Court to revoke a license or refuse a renewal license is imperative. In re Petition for Re-Hearing. No. 231 March Sessions, 1916. Q. S. Allegheny County. Joseph Stadtfeld, for applicant. BROWN, J., May 15, 1916.-1. The Joseph Fleming & Son Company, carrying on a retail drug business at 410 Market Street and 3 Diamond Square, First Ward, City of Pittsburgh, was incorporated July 20, 1903, under the Act of April 29, 1874: "For the purpose of engaging in the sale of drugs, medicines, chemicals and druggists' sundries at wholesale and retail." 2. Some ten or more years ago the company was granted a wholesale liquor license, and thereafter, from year to year-including the year from May 1, 1915, to May 1, 1916-a renewal grant. 3. At the hearing in the March Sessions of the License Court, 1915, Mr. Staley President, Agent and Trustee-was notified that the company, in seeking a renewal wholesale liquor license, was seeking the exercise of a power it did not possess. For that reason, alone, the license might have been refused. But, not to work a sudden hardship, the company was granted a renewal license for the year beginning May 1, 1915-upon condition that during the new license term it would dispose of its wholesale liquor business. This it failed to do. Instead, at No. 38 March Sessions, 1916, it presented a petition for a renewal license for the year commencing May 1, 1916; and at the hearing filed a "Supplemental Petition," praying that it be given a license for another year. 4. In addition to the foregoing facts, a remonstrance against the renewal of the license for the year beginning May 1, 1916, was filed; and at the hearing testimony was taken by the official court stenographer, and a transcription of it filed of record. Briefly stated, the testimony developed (inter alia) that, notwithstanding the notice to the company (through its President and its counsel, present at the March hearing, 1915), that it was not legally entitled to the broad right to sell liquor at wholesale, it proceeded to sell liquor at wholesale. The sales were not limited strictly to retail druggists and to hospitals-for drug purposes-but open and general to individuals and clubs and saloons. 5. So plain was, the violation of the renewal license for the year be ginning May 1, 1915, and so flagrantly beyond its corporate power to sell liquor at all, that we are powerless to grant the company a renewal license even for a limited time or for a limited purpose. 6. The ruling of the Superior Court: "That upon cause shown or proof made of violations of the liquor laws, the duty of the License Court to revoke a license is imperative." Com. vs. Brewing Co., 1 Sup., 627; Campbell's License, 8 Sup., 524 applies with equal force to an application for a renewal license. 7. A wholesale liquor license granted to a wholesale druggist has always been understood as a license limited to sales to retail druggists and to hospitals-for drug purposes. 8. The sole right of a retail druggist to sell liquor is measured and limited by Section 16 of the Act of May 13, 1887, P. L. 113, Purdon 2323 (41): "Druggists and apothecaries shall not be required to obtain license under the provisions of this Act, but they shall not sell intoxicating liquors In re Application for License by Joseph Fleming & Son Co. except upon the written prescription of a regularly registered physician; alcohol, however, or any preparations containing the same, may be sold for scientific, mechanical or medicinal purposes. Anyone violating the provisions of this Act shall be guilty of a misdemeanor, and, upon conviction thereof, shall be subject to the same penalties as are provided in the fifteenth section of this Act: Provided, That no spirituous, vinous, malt or brewed liquors shall be sold or furnished to any person more than once on any one prescription of a physician. * Beyond this statutory intent, the Legislature has not seen fit to extend the power of retail druggists to sell liquor. CARPENTER, J., May 15, 1916.-When this application was heard I expressed doubt respecting the authority of the Court to grant the license. The application was refused and a petition has been filed praying that a re-hearing be granted. It is unnecessary to enter upon a discussion of the authority of the Court to grant a license to a corporation organized for the purpose of carrying on the wholesale and retail drug business. The question was raised by me solely as a question of law. It is probable that if I were called upon to decide, I would adhere to the view that I expressed when the question was first suggested. I am free to admit that I may be in error, but whether right or wrong, I have no wish to disturb the uniform practice of our Court. When the application was heard I was wholly unacquainted with the action of the Court in prior years. An examination of the record shows that for at least eleven consecutive years the Judges, who have from time to time presided, have granted license at the present location to the present applicant. I feel bound to follow this long established precedent. In view of all the circumstances I am of opinion that a re-hearing should be granted. If, at the re-hearing, facts are disclosed which make it the duty of the Court to refuse license, the petition for re-hearing will be dismissed. In Re Application of Radulovich for Retail Liquor License. Petition for Re The Court of Quarter Sessions may refuse a renewal of a liquor license where the evidence shows the number of retail houses in the vicinity was greater than necessary for the accommodation of the public. In re Petition for Re-Hearing. Q. S. Allegheny County. Geo. M. Harton, for applicant. No. 1361 March Sessions, 1916. PER CURIAM, May 15, 1916.-Peter Radulovich was refused a renewal of his retail liquor license in Collier Township; and, thereafter, filed a petition for a re-consideration and re-hearing. Upon a careful consideration thereof a re-hearing is refused. The license was refused because the number of retail houses in Collier Township-and in the vicinity of the applicant's house-was greater than necessary for the accommodation of the public. |