
15 F.2d 285 (1926)
UNITED STATES
v.
SAKHARAM GANESH PANDIT.
No. 4938.
Circuit Court of Appeals, Ninth Circuit.
November 1, 1926.
*286 Samuel W. McNabb, U. S. Atty., and Donald Armstrong, Asst. U. S. Atty., both of Los Angeles, Cal.
E. E. Millikin, Lucius K. Chase, and S. G. Pandit, all of Los Angeles, and C. E. S. Wood, of Portland, Or., for appellee.
Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.
NETERER, District Judge (after stating the facts as above).
This court, in Akhay Kumar Mozumdar v. United States (C. C. A.) 299 F. 240, reviewed decree of cancellation of certificate, and in United States v. Siem (C. C. A.) 299 F. 582, reviewed decree denying cancellation, both actions brought under section 15 of the Naturalization Act. The question of res judicata was not presented or considered in either case. The cumulative remedy provided by sections 11 and 15 (Comp. St. §§ 4370, 4374) in ex parte cases (U. S. v. Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616) has not been considered by this court or the Supreme Court with relation to final judgments or effect on res judicata where the court had jurisdiction and the United States appeared. In the Thind Case the action in equity was begun within the time in which an appeal could be prosecuted and the effect was in the nature of appeal. No point was made as to procedure or as to res judicata.
It would scarcely be contended that the intent of the Congress was to grant a new trial, except in ex parte cases where a final judgment is entered, when the law provides a remedy enforceable in the courts according to the regular course of legal procedure and the remedy pursued and a status decreed. The Supreme Court in Tutum v. United States, 46 S. Ct. 425, 70 L. Ed. 456, said: "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 judgment being final in a proceeding according to the regular course of law, the giving of section 15 unlimited scope would in effect grant a new trial at the government's election, and as to that the court in De Chastellux v. Fairchild, 15 Pa. 18, 20 (53 Am. Dec. 570), said: "If anything is self-evident in the structure of our government, it is that the Legislature has no power to order a new trial, or to direct the court to order it, either before or after judgment. The power to order new trials is judicial; but the power of the Legislature is not judicial. It is limited to the making of laws; not to the exposition or execution of them. The functions of the several parts of the government are thoroughly separated, and distinctly assigned to the principal branches of it, the Legislature, the executive, and the judiciary, which, within their respective departments, are equal and co-ordinate."
The issue in the trial court was clearly an issue of fact. The defendant asserted a status, "free white person," within the meaning of the Naturalization Act. This status the court determined as a question of fact, in considering the evidence presented and after the issue was fully briefed and argued. The court erred in its conclusions. "`Erroneous' means deviating from the law. * * * Courts often speak of erroneous rulings, and always as meaning such as deviate from or are contrary to the law, but the term `erroneous' is never used by courts or law writers as designating a corrupt or evil act." Thompson v. Doty, 72 Ind. 336 at 338. It means having power to act, but error in its exercise. Matter of N. Y. Catholic Protectory, 8 Hun. (N. Y.) 91, 196. See, also, Chemung Nat. Bank v. Elmira, 53 N. Y. 609; Tiedt v. Carstensen, 61 Iowa, 365, 16 N. W. 214.
The question of res judicata was raised in Johannessen v. United States, 225 U. S. 227, 238, 32 S. Ct. 613, 615 (56 L. Ed. 1066). The court said: "The foundation of the doctrine of res judicata, or estoppel by judgment, is that both parties have had their day in court. 2 Black, Judgts., secs. 500, 504. The general principle was clearly expressed by Mr. Justice Harlan, speaking for this court in Southern Pacific R. Co. v. United States, 168 U. S. 1, 48 [18 S. Ct. 18, 27, 42 L. Ed. 355], `that a right, question or fact distinctly put in issue *287 and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies.'" And then it was said: "Sound reason, as we think, constrains us to deny to a certificate of naturalization, procured ex parte in the ordinary way, any conclusive effect as against the public."
The court in this decision recognized the doctrine of res judicata, except in ex parte cases, applicable to a naturalization hearing. In Tutum v. United States, Neuberger v. United States, 270 U. S. 568, at page 577, 46 S. Ct. at page 427 (70 L. Ed. 459) Justice Brandeis said: "In passing upon the application the court exercises judicial judgment." In Mut. Benefit Life Ins. Co. v. Tisdale, 91 U. S. 238, 245 (23 L. Ed. 314) the court said: "This certificate is, against all the world, a judgment of citizenship, from which may follow the right to vote and hold property."
It is thus conclusively established by the Supreme Court that a judgment granting a certificate of naturalization is a final judgment. The correctness of the findings to support the judgment does not affect it. Milne v. Deen, 121 U. S. 525, 7 S. Ct. 1004, 30 L. Ed. 980. And it is conclusive as to all media concludendi, and cannot be impeached by showing that it was based on mistake of law. Fauntleroy v. Lum, 210 U. S. 230, 28 S. Ct. 641, 52 L. Ed. 1039; American Express Co. v. Mullins, 212 U. S. 311, 29 S. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536.
In disposing of the issues in the several cases, the Supreme Court did give expression to general principles of law and to the duty and power of courts, or the meaning of provisions of the Act. The point here did not even lurk in the record, nor was it brought to the court's attention, and what was said was obiter dictum, and as said by Justice Sutherland in Webster v. Fall, 266 U. S. 507, 45 S. Ct. 148, 69 L. Ed. 411, cannot constitute a precedent. See, also, New v. Oklahoma, 195 U. S. 252, 25 S. Ct. 68, 49 L. Ed. 182; Tefft, Weller & Co. v. Munsuri, 222 U. S. 114, 32 S. Ct. 67, 56 L. Ed. 118; Wolff Packing Co. v. Industrial Court, 267 U. S. 552, 45 S. Ct. 441, 69 L. Ed. 785.
In Ozawa v. United States, 260 U. S. 178, 43 S. Ct. 65, 67 L. Ed. 199, a Japanese was denied admission by the District Court. On appeal to this court, the question of eligibility of the applicant was certified to the Supreme Court, and the court answered in the negative. In United States v. Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616, a high-caste Hindu was admitted to citizenship over the objection of the United States, and a bill in equity was filed within 60 days seeking cancellation, and on appeal to this court after decree, and on certification to the Supreme Court by appropriate questions affecting the applicant's qualifications, the issue was determined. The question of res judicata was not raised. In Tutun v. United States, 46 S. Ct. 425, 70 L. Ed. 455, the only issue was whether an order of naturalization is a final order, from which an appeal will lie, and the court said: "In passing upon the application the court exercises judicial judgment." Chief Justice Taft, in North Carolina R. Co. v. Story, 268 U. S. 288, 292, 45 S. Ct. 531, 533, 69 L. Ed. 959, said: "Coming now to the merits, it may be conceded that the first judgment against the company in favor of the administrator, however erroneous it was in view of the cases of Missouri Pac. R. [Co.] v. Ault, 256 U. S. 554 [41 S. Ct. 593, 65 L. Ed. 1087], and North Carolina R. Co. v. Lee, Administrator, 260 U. S. 16 [43 S. Ct. 2, 67 L. Ed. 104], not having been appealed from, was res judicata."
By the same token erroneously granting naturalization to the defendant, 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. (Italics supplied.)
The judgment is affirmed.
