(dissenting)-. The principle declared in the opinion is far-reaching. Its general application would subject to such collateral attack every naturalization certificate granted since the act was adopted, however in good faith granted and received, where it is shown there was in the proceedings any departure from formal procedural statutory provisions, however trivial and inconsequential, and which by no possibility did or could affect the merits.
That the sovereign has the undoubted power to prescribe terms, reasonable or unreasonable, upon which alone citizenship may be granted, must be conceded. But does it follow that in a naturalization proceeding the power of the court respecting procedural matters is more circumscribed than it is in all other judicial proceedings ? To my mind, the court hearing a petition for naturalization is still a court, with all the powers which inhere in courts, among which is the power, in a proper ease, if in furtherance of justice, to make such orders as were here made by the District Court, permitting to be filed and attached to the petition nunc pro tunc, the certificate of arrival.
A definite purpose may be gathered from the statutory requirement that there be present a certificate of arrival. Without lawful entry there can be no lawful naturalization, and the statute makes the certificate of arrival the evidence of the alien’s lawful entry, and that its presence is indispensable was decided in United States v. Ness, 245 U. S. 319, 38 S. Ct. 118, 62 L. Ed. 321, which case, though here much relied upon by the government and in the opinion, does not, in my judgment, determine the issue. In the proceeding there no certificate of entry whatever was present, while here the certificate was sent for and obtained by the government officials a few days after the petition was filed, and was before the court on the hearing of the petition — a very different situation.
It is manifest from the statute, and the departmental rules and regulations made pursuant to it, that the alien is not expected to employ counsel to pilot him through the maze of statutory requirements and forms, departmental rules, and court proceedings. On the contrary, it is contemplated and required that the naturalization officers and the clerk extend their assistance to the alien in the preparation and presentation of the necessary papers. The regulations provide for furnishing the necessary blanks by the government, and for use only of such. They prescribe a preliminary form, which the alien is expected to fill out, to supply the government officials with facts necessary in the proper preparation of the petition, although the statute does not require such preliminary form.
The statute says the certificate of arrival shall be attached to the petition. Surely it cannot mean that mere want of physical attachment, although specified in the statute, would render unlawful a grant of naturaliza^ tion where only the physical attachment had been overlooked. But the omission to have the certificate present at the particular time of the filing of the petition, when shortly thereafter supplied, is, to my mind, not less trivial or inconsequential than the want of attachment at precise time of filing.
The only object of supplying the certificate of arrival is to indicate that there is lawful record of applicant’s lawful entry. With the making or keeping of this record the applicant has nothing whatever to do, save to supply to the proper officials, at time of arrival, the facts upon which the record is made. The record itself is made and kept by the government, and the certificate of arrival made by government officials in custody of the record, from the facts there shown and puts in convenient form, for use of the court on the hearing, nothing within the knowledge of the alien, but only such information or evidence as the government all along possessed.
If it be claimed that the attachment and presentation of the certificate is for the purpose of giving to the naturalization officials opportunity to investigate for the full intervening 90 days required between filing and hearing the petition, it may well be replied that the petition, as well as the declaration of intention filed with it, both indicate whence, where, when, and how the applicant arrived, from which naturalization officials could, and, as is their general practice, did, send for and procure the certificate of arrival. If question arose about the certificate, or the identity of the applicant with the person described in it, the court would, on the government’s suggestion, grant time for further investigation, and refusal to do so might, as once stated by this court, be an improper exercise of discretion. United States v. Doyle (C. C. A.) 179 F. 687.
It does not here appear whether or not there was a preliminary form or application, or why the certificate of arrival was not re*32quired to be present and attached at the filing of the petition. It is apparent,, however, that it was through no fault of the alien, but that through some unexplained inadvertence on the part of the clerk the petition was permitted to be' filed without presence and attachment of this certificate. No possible harm or disadvantage to the government could or did accrue, and none is suggested, and to my mind if is entirely improper, to say that, because alone of the fact that at the particular time of filing the petition the certificate of arrival was not present and physically attached to it, the, court, with the certificate present and attached at time of hearing, was without jurisdiction to proceed, and the grant of naturalization unlawful. See Judge Geiger’s opinion. (D. C.) 13 F.(2d) 662. The identical ground upon which -this cancellation is sought was raised and adjudicated in the District Court in the naturalization proceedings. The certificate of arrival was present, but the government objected to the grant of the petition, for the specific reason that the certificate of arrival had not been presented with and attached to the petition when filed. The court allowed its filing and attachment nunc pro tunc as of date of petition, and granted the petition against government’s objection, from which judgment either party had undoubted right of appel-' late review. Tutun v. United States, 270 U. S. 568, 46 S. Ct. 425, 70 L. Ed. 738. The court there stated that the remedy to cancel, “afforded to the government by section 15, is narrower in scope than the review commonly afforded by appellate courts.”
'• In the recent case of United States v. Pandit, 15 F.(2d) 285, there was involved a suit by the government to cancel Pandit’s certificate of naturalization on the ground that he was a Hindu of full Indian blood, and therefore not entitled to citizenship, as was definitely held by the Supreme Court in United States v. Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616. It appears that in the naturalization proceedings the government challenged Pandit’s right to citizenship on that ground, but the District Court found he was a “free white person” and admitted him to citizenship. The Ninth Circuit Court of Appeals, sustaining the action of the court below in dismissing the petition for cancellation, said: “The right to citizenship having been distinctly put in issue, the United States appearing and contesting, and the issue directly determined by a court of competent jurisdiction, the judgment, not having been modified or reversed, cannot now be disputed.” Denial of certiorari by the Supreme Court attaches to this very important decision whatever, if any, added weight or authority such denial may import.
If the proper principle was applied in the Pandit cancellation proceedings, where the petitioner for naturalization was of a class not entitled to citizenship, surely it should- apply where the asserted ground for cancellation is not one of substance, but of procedure only, involving a manifestly harmless inadvertent omission by some one on behalf of the government charged with the duty of assisting the alien to make proper preparation and presentation of his petition. To my mind, not only had the District Court full jurisdiction of the subject-matter and of the parties, With power and discretion to make the orders it did, but, having adjudicated the very question, and no fraud or jurisdictional statutory transgression appearing, its judgment is not assailable by a suit to cancel.