LOCATION: Eagle Coffee Shoppe
DOCKET NO.: 198
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 366 US 308 (1961)
ARGUED: Mar 22, 1961
DECIDED: May 22, 1961
Facts of the case
Media for Montana v. Kennedy
Audio Transcription for Oral Argument - March 22, 1961 in Montana v. Kennedy
Number 198, Mauro John Montana, Petitioner versus Robert F. Kennedy, Attorney General of the United States.
Anna R. Lavin:
Mr. Chief Justice and if it please the Court.
This action originated in the Northern District of Illinois as a suit brought under Section 360 of the Nationality Act of 1952 for a judgment declaring this petitioner who was born of a United States citizen mother and an alien father born abroad.
We're asking for the (Inaudible) judgment that he be -- be declared a citizen of the United States.
The petitioner is now on the end of 55 years old.
He was conceived in the United States and he has resided continuously in the United States since his entry at the age of 3 months.
He is one of six children born to his parents -- the one of six children born to his parents who was born outside the continental limits of the United States.
His claim to citizenship rests on four alternative bases.
The first is under Section 2172 of the revised statutes of 1874 which statutes were in effect at the date of his birth which provided that “Children of persons who are now or have been citizens of the United States are to be considered as citizens.”
The petitioner's claim to citizenship in that regard urges that the words “children of persons” is to be considered in the distributive as well as in the collective and the words are now or has been, is not restricted to retrospective application but should in accordance with regular and accepted statutory construction be given prospective application.
The second basis concerns the interpretation of the Act of March 2, 1907 which provided for resumption of citizenship by an expatriated parent and the naturalization of his or her child by such resumption.
This was enacted subsequent to petitioner's birth but it has by -- well, it has been judicially determined to be declaratory of the common law then in existence.
We urge that that statute is not to be given the interpretation of giving greater rights to a former expatriate or to a naturalized person than it does a native-born citizen of the United States.
And the status of the petitioner's mother, Mrs. Montana, on her return to the United States should not be treated as less than such an expatriate -- an -- a former expatriate or a naturalized parent.
The third basis is similar to the second.
It concerns the Act of May 24th, 1934 which also provided for the bestowing of citizenship on an alien-born child of a -- or a current born child of a United States citizen parent, or also upon naturalization of such a parent.
This statute again has been judicially interpreted as merely clarifying the uncertainties in the Act of -- of March 2, 1907.
This Act, however, spells out that the bestowal of citizenship may pass by -- through the citizenship of either the mother or the father whereas in the Act of 1907, it merely recited the parent.
The fourth basis is addressed to the equity powers of this Court and urges that the Government be not allowed to avail itself of the result of an erroneous instruction given by a consular official to the mother of the plaintiff, who was prior to the birth of the child and while awaiting his birth, a 15-year-old person.
The facts of this case are fairly simple.
Madelyn Montana, the petitioner's mother was born in New Jersey in 1890.
She married Joe Montana in 1905.
Joe, the father, had been born in Italy but he had for several years prior to the marriage resided in the United States.
Joe Montana and Madelyn Montana left the United States for Italy in 1905 -- no, January 1906.
At that time, Madelyn was been about four months pregnant.
She arrived in Italy in February of 1906.
By a month and a half after arriving, Madelyn went with her mother to the American Consulate to obtain a passport for her return home.
The American Consulate refused to issue one to her in her advanced state of pregnancy.
Mrs. Montana, the only witness at the trial -- trial testified that she -- he had said to her, “Lady, you cannot go in that condition.