opinion: SCHWIMMER v. UNITED STATES.
  Circuit Court of Appeals, Seventh Circuit.
  June 29, 1928.
  No. 3997.
  1. Aliens <8=>68(l) — Applicant for citizenship had right to have her petition and evidence considered by court in accordance with settled rules of law.
  Alien applicant for citizenship had right to submit her petition and evidence to the court, and to have it exercise its judicial judgment thereon in accordance with settled rules of law, to have court consider only evidence relative and material to issue, and to have that evidence given its probative force.
  2. Aliens <§=>68(6)— Mere views of alien applicant for citizenship are not alone ground for denying petition (Naturalization Act § 4(4); 8 USCA § 382).
  Under provisions of Naturalization Act, § 4(4), 8 USCA § 382, requiring alien applicant for citizenship to show to the satisfaction of the court that he has behaved as a man of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the same, during the period specified, views of applicant, expressed before or at the time of hearing on application, may be important, as disclosing whether his conduct was that required ef applicants, but are not by statute a ground for denying petition.
  3. Aliens <©=>62(I) — Fifty year old woman, applicant for citizenship, held not disqualified because of her expressed unwillingness to personally bear arms in defense of United States (Naturalization Act, § 4(4); 8 USCA § 382).
  Fifty year old woman, applicant for citizenship, otherwise qualified for citizenship, held not disqualified because of her expressed unwillingness personally to bear arms in defense of the United States, such views not making her conduct that of a person not attached to the principles of the Constitution, or not well disposed to the good order and happiness of the same, under Naturalization Act, § 4(4), 8 USCA § 382.
  Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
  Petition by Rosika Schwimmer for admission to citizenship. From a decree denying petition, petitioner appeals.
  Reversed and remanded, with directions.
  Olive H. Rabe, of Chicago, Ill., for appellant.
  Fred J. Schlotfeldt, of Chicago, Ill., for the United States.
  Before ALSCHULER and ANDERSON, Circuit Judges, and BALTZELL, District Judge.
  ANDERSON, Circuit Judge.
  This is an appeal from a decree denying a petition for admission to citizenship. Appellant is a woman 50 years of age. The ease is here upon an agreed statement of facts, and the decree. Equity rule 77.
  The statement of facts consists of the questionnaire submitted to appellant by the district director of naturalization, and' her answers thereto; certain correspondence between her and the director; a condensed statement of her testimony at the hearing; and concludes thus:
  “Formal proof as to residence, moral character and fitness for citizenship was given by the witnesses who verified the petition.
  “It is agreed that the testimony at the hearing of the petition shows that the petitioner is'qualified for citizenship except in so far as the views of the applicant set forth in the foregoing agreed statement of facts may show that the applicant is not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and except in so far as the same may show that she cannot take the oath of allegiance without a mental reservation.” *
  At the close of the hearing the District Court entered the following decree:
  “And now again upon consideration of the petition of Rosika Schwimmer * * * it appearing that the said petitioner is not attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, and further that she is unable to take the oath of allegiance prescribed by the Naturalization Law without a mental reservation, it is therefore ordered that the said petition be and is hereby denied.”
  The views of appellant relied upon to support the denial of her petition sufficiently appear in her answers to question 22 of the questionnaire, and her willingness to take the oath of allegiance, as shown in her answer to question 20. These questions and answers are as follows:
  “20. Have you read the following oath of allegiance? Yes. ‘I hereby declare on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and particularly to Hungary, of whom I have heretofore been a subject; that I will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic; and that I will bear true faith and allegiance to the same.’
  “Are you willing to take this oath in becoming a citizen? Yes.”
  “22. If necessary, are you willing to take up arms in defense of this country? I would not take up arms personally.”
  When asked, upon the, hearing, about her answer to question 22, and her expressed willingness to take the oath of allegiance, she said:
  “I am able to take the oath of allegiance without any reservations. I am willing to do everything that an American citizen has to do, except fighting. If American women would be compelled to do that, I would not do that. I am an uncompromising pacifist. Asked how far does that go — if I disapprove of the government fighting, I answer, it means I disapprove of the government asking me to fight personally with my fists or carrying a gun. I do not care how many other women fight, because I consider it a question of conscience. I am not willing to bear arms. In every other single way I am ready to follow the law and do everything that the law compels American citizens to do. That is why I can take the oath of allegiance, because, as far as I can find out, there is nothing that I could be compelled to do that I cannot do. If it is a question of fighting, as much as I desire American citizenship, I would not seek the citizenship.”
  Appellant was examined at considerable length upon the hearing, but the above extracts furnish a fair expression of the views relied upon to support the decree. Her testimony, other than the expression of these views, shows an intelligent appreciation of the fundamental principles of the Constitution and her attachment to them, and that she is well disposed to the good order and happiness of the United States.
  The fourth subdivision of the section of the Naturalization Law, prescribing what the applicant must show in order to be admitted reads:
  “Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.” 8 USCA §' 382.
  The Supreme Court in Tutun v. United States, 270 U. S. 568, 578, 46 S. Ct. 425, 427 (70 L. Ed. 738), said:
  “The opportunity to become a citizen of the United States is said to be merely a privilege and not a right. It is true that the Constitution does not confer upon aliens the right to naturalization. But it authorizes Congress to establish a uniform rule therefor. Article 1, § 8, cl. 4. The opportunity having been conferred by the Naturalization Act [34 Stat. 596], there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate. See United States v. Shanahan [D. C.] 232 F. 169, 171. There is, of course, no ‘right to naturalization unless all statutory requirements are complied with.’ United States v. Ginsberg, 243 U. S. 472, 475 [37 S. Ct. 422, 61 L. Ed. 853]; Luria v. United States, 231 U. S. 9, 22 [34 S. Ct. 10, 58 L. Ed. 101], The applicant for citizenship, like other suitors who institute proceedings in a court of justice to secure the determination of an asserted right, must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent; and he must establish these allegations by competent evidence to the satisfaction of the court. In re Bodek, 63 F. 813, 814, 815; In re an Alien, 7 Hill (N. Y.) 137. In passing upon the application the court exercises judicial judgment. It does not confer or withhold a favor.”
  Appellant had the right to submit her petition and evidence to the court, and to have it exercise its judicial judgment thereon. She had a right to have the evidence, and the effect of it, weighed and considered in accordance with the settled rules of law; to have the court consider only evidence relative and material to the issue; and to have that evidence given its probative force.
  The question for judgment was, Did she make it appear that she had behaved, that is, conducted herself, as a person of good moral character, attached and disposed as the statute requires, during the time fixed by it? Assuming that the time to be covered by the inquiry ended with the hearing, her views, expressed then or before that time, might be important as disclosing whether her conduct was that required of applicants; but mere views are not, by the statute, made a ground for denying a petition.
  The views expressed by the applicant at most reveal an unwillingness personally to bear arms, and it being agreed that she has shown herself in every other way qualified for citizenship, unless her expressed unwillingness to bear arms makes her conduct that of a person not attached to the principles of the Constitution of the United States, or not well disposed to the good order and happiness of the same, her petition should have been granted.
  Vattell, in his Law of Nations, as quoted in appellee’s, brief, says:
  “No person is naturally exempt from taking up arms in defense of the state — the obligation of every member of society being the same.. Those alone are excepted, who are incapable of handling arms, or supporting the fatigues of war. This is the reason why old men, children and women are exempt.”
  We do not have before us the case of a male applicant for admission who is able to bear arms and is within the usual conscription age, but the ease of a woman fifty years of age.
  Women are considered incapable of bearing arms. Male persons of the age of appellant have not been compelled to do so. Appellant, if admitted, cannot by any present law of the United States be compelled to bear arms. Judging by all the conscription acts of which we have knowledge, she never will be required to do so; yet she is denied admission to citizenship because she says she yill not fight with her fists or carry a gun.
  In other words, there is put to her an hypothetical question — what would she do under circumstances that never have occurred and probably never will occur — and upon her answers to this supposed case her petition is denied. A petitioner’s rights are not to be determined by putting conundrums to her.
  The views of appellant relied upon to support the denial of her application have no substantial relation to the inquiry authorized by the statute. They were immaterial to that inquiry and do not furnish sufficient basis for the decree.
  Reversed and remanded, with direction to grant appellant’s petition.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.