« AnteriorContinuar »
the Currency relating to the organization, etc., of national banks,” issued in 1909, wherein it is said:
“The word 'place' and 'at an office or banking house' (as used in section 5190) have always been construed by the comptroller to mean the legal domicile of the corporation, of which it can have but one” (p. 40). And, again:
"While the national-bank act does not, in express terms, prohibit the establishment and maintenance of branch banks or agencies by associations or primary organization, the implication to that effect is clear, and the courts have held that what is implied is as effective as that which is expressed” (p. 42).
On November 15, 1910, this question was submitted to the present solicitor of your department, who, after mature and careful consideration, concurred in the opinion of Solicitor Hepburn.
With this uniform construction of this statute by your department for more than 20 years, and the unmistakable inference that the Congress which passed the act entertained the same view as to its meaning, I would hesitate to express a contrary opinion if, as an original proposition, I believed the act capable of being so construed, even though the contrary construction were the more reasonable.
However, upon the various considerations above stated, it is my opinion that:
First. Independently of section 5190, Revised Statutes, a national bank is not, under its charter, authorized to establish a branch or coordinate office for the purpose of carrying on a general banking business in the place designated in its certificate of organization; and,
Second. That section 5190, Revised Statutes, properly construed, restricts the carrying on of the general banking business by a national bank to one office or banking house in the place designated in the association's certificate of organization. Respectfully,
J. A. FOWLER,
Assistant to the Attorney General. Approved:
GEORGE W. WICKERSHAM.
THE SECRETARY OF THE TREASURY.
The Attorney-General declines to give an official opinion upon the ques
tion whether an objection made to the naturalization of an alien should have been sustained, as no case involving that question is now pending before the Department requesting it, and for the further
reason that the question is a judicial one. The Attorney-General also declines to answer the question whether an
appeal would lie from the judgment of a naturalizing court to one of the higher courts of North Dakota, for same reasons and for the additional reason that the question relates merely to a hypothetical case.
DEPARTMENT OF JUSTICE,
May 12, 1911. Sir: I beg to acknowledge the receipt of your letter of the 4th instant, in reference to the case of Iver Iverson Lysne. Lysne, it appears from the record in his case, was admitted to citizenship by the district court of Benson County, N. Dak., in August, 1910, over the objection of the Government, notwithstanding it was shown that he had been convicted in a court of the State of keeping a place for gambling, and sentenced to confinement in the county jail for a period of 30 days and to pay a fine and costs; that he had not appealed from said judgment, and that the same had been enforced. In the naturalization proceedings, however, Lysne denied that he was guilty of the charge referred to, and declared that it was his intention to comply with the law and principles of the Constitution of the United States.
No appeal was taken in behalf of the United States from the judgment of the State court admitting Lysne to citizenship, and the department has been advised that the time for taking such an appeal has expired, assuming that one would lie. Nevertheless, you state that you wish, if possible, to secure my opinion upon the following questions:
“First. Do you think the objection made to the naturalization of this alien is a good one and should have been sustained, the objection being that he had been tried by a jury and found guilty of violating the law of the State of North Dakota, and was therefore not shown to be a man of good moral character, attached to the principles of the Constitu
tion of the United States, and well disposed to the good order and happiness of the same as required by the fourth paragraph of section four of the act of June 29, 1906 ?
“Second. This objection having been overruled, if proper exception had been taken and all necessary and proper steps to take an appeal had been taken in time, would an appeal lie to one of the higher courts of the State of North Dakota ?”
In reply to the first question, I beg to call your attention to the department's letter to you of March 16 last, relating to the propriety of instituting proceedings for the cancellation of the certificate of naturalization issued to Lysne, in which it was said:
“This department concurs in the view of the district attorney that under the circumstances stated the certificate of naturalization was not illegally procured within the meaning of section 15 of the act of June 29, 1906, authorizing cancellation proceedings. The question of character in naturalization proceedings is one of fact, to be determined by the court. The statute expressly provides that “it shall be made to appear to the satisfaction of the court admitting any alien to citizenship” that he has, during the five years immediately preceding the date of his application, behaved as a man of good moral character. It does not undertake to prescribe any rules of evidence for the court to follow in reaching its conclusion.
“In the present case it appears that the court heard and duly considered all the facts respecting the applicant's character. To be sure there may be good reasons to take the view that the court's conclusion was not warranted by the facts, but the essential thing is that it did appear to the satisfaction of the court that the applicant was qualified. Such being the case, if the proceedings were regular in all other respects, it is manifest that the requirements of the naturalization law have been complied with, and there is no ground for cancellation proceedings.”
As indicated in this letter, the question as to the sufficiency of the evidence to establish Lysne's character is a judicial one, upon which, especially since it has been de
cided by the court, it would be improper for the Attorney General to express an opinion. As said by Acting Attorney General Aldrich (20 Op. 383), in declining to render an opinion upon a certain question and referring to the provision of section 356 of the Revised Statutes that “the head of any executive department may require the opinion of the Attorney General on any question of law arising in the administration of his department”
“Furthermore, the questions propounded are judicial in character, and must be decided by the courts, if decided at all, and therefore an expression of opinion on them by me would have no more weight than the opinions of any unofficial person (19 Op. 56; 13 Op. 160). But the law intended that the opinions of the Attorney General should have authority, and this object can only be accomplished by confining them to questions strictly appertaining to executive administration.”
It is also to be observed that the case to which your inquiry relates is not one pending in your department and requires no official action on your part. For that reason, if for no other, the Attorney General would be compelled, in deference to a well-established practice of this department, to decline to pass upon the question referred to. (20 Op. 536; 21 ib. 109, 509, 568.)
For like reasons, it would be improper for me to attempt to answer your second question—whether an appeal would lie from the judgment of the naturalizing court to one of the higher courts of the State of North Dakota. Furthermore, the time to appeal in Lysne's case having expired, it manifest that this question relates merely to a hypothetical case, and upon such cases the Attorney General has uniformly declined to express an opinion. (20 Op. 288; 22 ib. 77; 25 ib. 93.) Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
LEGALITY OF BOND ISSUE FOR THE MUNICIPALITY OF
CEBU, PHILIPPINE ISLANDS. The issuance of bonds in the sum of $125,000 for the purpose of providing
funds for certain municipal improvements in the municipality of Cebu, P. I., when made in accordance with the provisions of the act of the Philippine Legislature, approved March 29, 1911, as herein construed, is valid.
DEPARTMENT OF JUSTICE,
May 25, 1911. . SIR:
beg to respond to your letter of the 18th instant, in which you inclose a copy of your communication of the 19th ultimo requesting my opinion as to the legality of bonds in the sum of $125,000 to be issued by you on behalf of the municipality of Cebu, Philippine Islands, under authority of an act of the Philippine Legislature, for the purpose of providing funds for certain municipal improvements. It does not appear from the files that the original of your letter of April 19, above mentioned, was ever received at this department.
Section 66 of the Philippine civil government act of July 1, 1902 (32 Stat. 691, 707), as amended by the act of February 6, 1905 (33 Stat. 689, 690), is as follows:
“SEC. 66. That for the purpose of providing funds to construct necessary sewer and drainage facilities, to secure a sufficient supply of water and necessary buildings for primary public schools in municipalities, the Government of the Philippine Islands may, where current taxation is inadequate for the purpose, under such limitations, terms, and conditions as it may prescribe, authorize, by appropriate legislation, to be approved by the President of the United States, any municipality of said islands to incur indebtedness, borrow money, and to issue and sell (at not less than par value in gold coin of the United States) registered or coupon bonds, in such amount and payable at such time as may be determined to be necessary by the Government of said islands, with interest thereon not to exceed five per centum per annum: Provided, That the entire indebtedness of any municipality shall not exceed five per centum of the assessed valuation of the real estate in said municipality, and any obligation in excess of such limit shall be null and void."