
    In re BYRNE.
    District Court, W. D. Washington, S. D.
    May 25, 1928.
    No. 3054.
    Aliens i@=»68(2) — Alien honorably discharged from United States Navy held not entitled to naturalization without previous declaration of intention; “armies of the United States” (8 USCA § 395).
    Alien honorably discharged from United States Navy held not entitled to naturalization without previous declaration of intention, under Rev. St. § 2166 (8 USCA § 395), authorizing such naturalization in case of aliens honorably discharged from regular or volunteer forces of the United States armies; words “armies of the United States” not including the navy.
    Petition of Dennis Byrne for naturalization.
    Petition dismissed without prejudice.
   CUSHMAN, District Judge.

Dennis Byrne, bom in 1867, in Ireland, who came to the United States in 1885, petitions for naturalization under See. 2166 R. S. (8 USCA § 395). While his petition avers an honorable discharge from the United States Army, October 26, 1898, he testified upon the hearing of his petition that his service was in the United States Navy. There is no allegation nor evidence of any declaration of intention. Objection is made to the applicant’s admission for-the reason that section 2166, R. S., relates to service in the Army of the United States, and that petitioner is not eligible for naturalization under any special statute, because of his service in the United States Navy.

The district director cites Act of July 26, 1894, 28 Stat. at Large, 124; Act of June 30, 1914, 38 Stat. at Large, 395; section 2 of the Act of May 9, 1918, 40 Stat. at Large, 547 (8 USCA § 395); In re Bailey, Fed. Cas. No. 728, 2 Sawy. 200; In re Chamavas (Super. Buff.) 21 N. Y. S. 104. The petitioner has submitted the matter without argument.

Section 2166, R. S., Comp. Stat. § 4355, provides for naturalization without previous declaration of intention of any alien of 21 years and upwards, « * * * who has enlisted, or may enlist, in the armies of the United States, either the regular or the volunteer forces, and has been, or may be hereafter, honorably discharged. * * * ” Further provision is therein made that proof of more than one year’s residence in the United States should not be required. This statute was enacted in 1862. 12 Stat. at Large, 597. In 1872, in Re Bailey, Fed. Cas. No. 728, 2 Sawy. 200, the District Court of Oregon citing U. S. v. Freeman, 3 How. (44 U. S.) 564, 11 L. Ed. 724, and Wilkes v. Dinsman, 7 How. (48 U. S.) 125, 12 L. Ed. 618, held that the words of the section, “armies of the United States,” do not include “marines.” In its opinion the court said:

“ * * * The term ‘army’ or ‘armies’ has never been used by Congress, so far as I am advised, so as to include the navy or marines, and there is nothing in the act of 1862, or the circumstances which led to its passage, to warrant the conclusion that it was used therein in any other than its long established and ordinary sense — the land force, as distinguished from the navy and marines. On a former occasion, this court decided orally that a seaman was not within the provision of this act. Upon further and careful examination of the subject, I am unable to find any substantial reason for concluding that there is any difference in this respect between a seaman and a marine, or that persons who have served as either are to be regarded as having served in the armies of the United. States, within the ordinary and long-established meaning of that term. And if I am mistaken in this conclusion, the petitioner is-not without remedy. Congress, if it sees proper, may extend the act of 1862 to marines by name, as it did the bounty land acts of February 11, 1847, and September 28, 1850.”

Thereafter Congress, by the Act of July 26, 1894, 28 Stat. at Large, 124, .Comp. Stat. § 4356, made provision for the naturalization, without previous declaration of intention, of aliens honorably discharged from the Navy and the Marine Corps. By the Act of June 30, 1914, 38 Stat. at Large, 392-395, provision was made for such naturalization for those honorably discharged from service in the Navy, Marine Corps, or from the Revenue Cutler Service. By section 2 of the Act of May 9, 1918, 40 Stat. at Large, 542, 546, and 547, the foregoing statutes were repealed.

Concerning section 2166, R. S., under which the petitioner’s application is filed, section .2 contains the following provision: “ * * * Provided further, that as to all aliens who, prior to January first, nineteen hundred, served in the armies of the United States and were honorably discharged therefrom, section twenty-one hundred and sixty-six of the Revised Statutes of the United States shall be and remain in full force and effect, anything in this Act to the contrary notwithstanding.” 8 USCA §' 395.

The district director’s objection must be sustained, and petitioner’s application will be dismissed, without prejudice to his applying for naturalization under the general law.  