Bogunovic v. United States Department of Labor

SHENK, J. The petitioner has appealed from an order of the superior court denying his application for naturalization as a citizen of the United States.

Section 357 of Title 8, U. S. C. A., confers exclusive jurisdiction to naturalize aliens upon designated federal courts,- “also all courts of record in any State or Territory having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.’’ No special provision is made concerning appeals. The question first presented is whether an appeal is allowable in such cases and particularly whether an appeal may be taken from the order of the superior court to a reviewing court of this state. The question seems to be answered by the decision in Tutun v. United States, 270 U. S. 568 [46 Sup. Ct. 425, 70 L. Ed. 738], where the contention was made that a naturalization proceeding was not a ease within the meaning of the Judicial Code relating to appellate jurisdiction of the federal courts (sec. 225, Title 28, [162]U. S. C. A.) The Supreme Court held that “whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status. A petition for naturalization is clearly a proceeding of that character.” The court rejected the contrary holding in the case of United States v. Dolla, 177 Fed. 101 [100 C. C. A. 521, 21 Ann. Cas. 665], and apparently approved the rule declaring that appellate jurisdiction exists in the state courts when such proceedings are commenced therein, citing In re Fordiani, 98 Conn. 435 [120 Atl. 338]; United States v. Hrasky, 240 Ill. 560 [88 N. E. 1031, 130 Am. St. Rep. 288, 16 Ann. Cas. 279]; United States v. Gerstein, 284 Ill. 174 [119 N. E. 922, 1 A. L. R. 318]; Ex parte Smith, 8 Blackf. 395; Dean, Petitioner, 83 Me. 489 [22 Atl. 385, 13 L. R. A. 229]; State v. District Court, 107 Minn. 444 [120 N. W. 898, 22 L. R. A. (N. S.) 1041]; Ex parte Johnson, 79 Miss. 637 [31 So. 208, 89 Am. St. Rep. 665]; State v. District Court, 61 Mont. 427 [202 Pac. 387]; Rushworth v. Judges of Inferior Court, 58 N. J. L. 97 [32 Atl. 743, 30 L. R. A. 761]; United States v. Breen, 135 App. Div. 824 [120 N. Y. Supp. 304]; In re Karasick, 208 App. Div. 844 [204 N. Y. Supp. 919]; In re Vura, 5 Ohio App. 334; Ex parte Granstein, 1 Hill (S. D.) 141. The court also called attention to the cases of In re Wilkie, 58 Cal. App. 22 [208 Pac. 144], and State v. Superior Court, 75 Wash. 239 [134 Pac. 916, Ann. Cas. 1915C, 425], in which the right of appellate review was denied. The decision in In re Wilkie followed the ease of United States v. Dolía, which, as stated, was rejected by the Supreme Court in the Tutun case. Because of the decision in the latter case the question was left open in the case of In re Hullen, 124 Cal. App. 271 [12 Pac. (2d) 487], where the appeal was dismissed because not taken in time. The decision in Tutun v. United States indicates the correct rule, namely, that the applicant in a naturalization proceeding is entitled to the appropriate remedies available to litigants in any action or proceeding in the courts of the state, including the right of appeal.