was a rebuttable one. U. S. v. Howe, supra; Ex parte Gilroy (D. C.) 257 Fed. 110. Like rulings were made by the Secretarics of State under a similar provision in the treaty of 1868 with Prussia (15 Stat. 615). See Moore's Digest of International Law, §§ 470, 471. [2] And we are of opinion that the presumption was overcome by the evidence. The period of foreign residence relied upon from which it is claimed the presumption arose was, we assume, the period subsequent to plaintiff's return to Germany in 1909. A two-year period has not elapsed between the passage of the act in 1907 and the return of plaintiff to the United States in 1908, and the return would stop the running of that period. We mention this because, in one of the letters from the State Department denying plaintiff a passport, a statement is made to the effect that the presumption arose in 1909. This we think was an inadvertence. [3] The presumption under the statute is not one of renunciation of citizenship. This method of expatriation is covered by the first clause of section 2 of the act of 1907. But the presumption here under discussion is one of abandonment of citizenship, covered by the second clause of the section. It is incumbent on plaintiff to prove, therefore, that during his stay in Germany he had the intention of retaining his American citizenship, of returning to the United States, and of remaining there permanently. Facts and circumstances favorable to plaintiff are that his return to Germany in 1909 was for a specific reason, namely, the illness of his wife's mother; that his property was almost entirely in Nebraska; that he left his property in the care of a brother-in-law, but without specific arrangement as to its care and management; that the brother-in-law believed, from his talk with plaintiff, and acted on the belief, that plaintiff intended to return; that plaintiff had made a trip to Germany in 1901, and had then left his property in charge of the same person and without specific agreement, and had returned to the United States in 1908; that this brother-in-law remitted to plaintiff about one-half of the annual income of the property, and invested the remaining one-half in the United States, amounting to about $1,500 annually; that after the death of the mother-in-law, in 1909, plaintiff endeavored to sell the little property he had in Germany, including the house where he lived; that while in Germany he did not engage in any business; that he made no attempt to take part in German affairs; that he took no steps to become a German citizen, nor made any declaration of intention so to do; that in 1914, again in 1919, and again in 1920, he tried to obtain passports for a return to the United States. All of these facts and circumstances appear to us to indicate an intention on the part of plaintiff to retain his citizenship and to return to the United States; and when plaintiff's own testimony as to his intention is added to the above facts, we think the only reasonable conclusion is that plaintiff did not intend to cease to be an American citizen, and did not in fact cease to be one. The fact that the record shows that plaintiff may have made statements inconsistent with his present testimony as to some matters, and perhaps may have made untrue statements, is not destructive of the conclusions we have reached above. Those statements were none of them in the nature of declarations or admissions that plaintiff had ceased to be an American citizen, or that he did not intend to return to the United States; in fact, they were all made in his repeated efforts to return to the United States. That the inconsistent and untrue statements have a bearing upon the credibility of the plaintiff is, of course, true; but plaintiff appeared personally in the trial court, he was subject to the observation and examination of the court, and the conclusion of the court was thus expressed: "Having considered the circumstances in detail, I am convinced that the plaintiff is telling the exact truth, when he swears that he at all times considered himself an American citizen, that he never intended to or did renounce his allegiance to this government, and that his intention to return hither for permanent domicile was fixed and abiding in his mind at all times." We find nothing in the record that leads us to differ from this conclusion. It was suggested upon the argument that great weight should be given to the conclusion, reached by the State Department, that plaintiff was not entitled to a passport because he had not overcome the presumption of the Act of March 2, 1907. We have not been unmindful of the suggestion, but have given that conclusion careful consideration. It is to be noted that there was no express finding by the State Department that plaintiff was not an American citizen, but simply a finding that plaintiff had failed to overcome the presumption arising under the statute of March 2, 1907. But, assuming that one is the equivalent of the other, it must be borne in mind that this conclusion of fact by the State Department is not one of that class of conclusions of fact by the head of a department to which is given the force of an adjudication. It has become established law that Congress may devolve upon an executive department or subordinate official thereof the right and duty of making inquiries of fact and findings thereon, and that such findings are conclusive, if there has been a fair hearing. The right and duty may be devolved by express provision of statute, or as a necessary consequence of the authority granted to the department or official. This rule has been applied to the Land Department, the Navy Department, the Post Office Department, the Department of Agriculture, the Department of Labor and Commerce. Houston v. St. Louis Packing Co., 249 U. S. 479, 39 Sup. Ct. 332, 63 L. Ed. 717, and cases therein cited. [4] But in all these cases the findings which are held conclusive by the courts are findings which were the necessary basis for the action taken. For example, in the case cited above, a finding that a certain word (sausage) was "deceptive," as a basis for denying its use, when applied to a certain compound of meat, under the Meat Inspection Act; in U. S. v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, a finding that a certain person was not a native-born citizen, as a basis for denying him admission to the United States under the Chinese exclusion and immigration laws; in Cameron v. U. S., 252 U. S. 450, 40 Sup. Ct. 410, 64 L. Ed. 659, a finding that certain land was "nonmineral" as a basis for denying a patent under the land laws and the Forest Reserve Act and the Monument Reserve Act. [5] But in the case at bar a finding that plaintiff had ceased to be a citizen of the United States was not necessary to the action of the State Department in denying him a passport, for the reason that the granting of a passport by the United States is, and always has been, a discretionary matter; and a passport, when granted, is not conclusive, nor is it even evidence, that the person to whom it is granted is a citizen of the United States. Urtetiqui v. D'Arcy, 9 Pet. 692, 9 L. Ed. 276; In re Gee Hop (D. C.) 71 Fed. 274; Edsell v. Mark, 179 Fed. 292, 103 C. C. A. 121; 23 Op. Attys. Gen. 509. This has been the law both prior to the passage of any statute relating to the granting of passports, as well as subsequent to such statutes, now embodied in sections 4075 et seq. Revised Statutes (Comp. St. § 7623 et seq.). Any finding that the State Department may have made in connection with the denial of a passport to plaintiff was purely for the convenience of the department, and does not come within the rule above cited in regard to findings of fact by heads of departments. While such a finding of the State Department is, as above stated, entitled to respectful consideration, it is not binding upon the courts in adjudicating the status of an alleged citizen. Furthermore, evidence before the State Department was solely by affidavit, an unsatisfactory form of evidence at best. On the trial in the court below plaintiff appeared in person and testified. Other testimony was given. The inquiry was broader in scope and also more specific as to details than the inquiry by the State Department. The conclusion of the trial court that plaintiff was entitled to recover from defendants the property in their custody belonging to him was right, and the Judgment is affirmed. Geographical restrictions_. Albania__ 329 329 164, 165, 180, 240, 264, 270, 275–277, 309, 310, 320, 341, 345, 346 190-194 China__ Czechoslovakia_. 62, 107, 166, 191, 192, 201 62, 73, 75, 76, 98, 102, 106, 107, 109, 111, 116-119, 122, 123, Hungary. ---- 73, 91, 92, 131, 132, 191-193, 201, 202, 208, 258, 262, 263 Anarchists; revolutionary radicals__ 180, 275, 323, 343, 349, 351, 352, 355, 356 128, 129, 162, 180, 195, 229, 244–245, 246, 253, 263, 268, 324-327, Congressional investigating committees. Contumacy -- Conviction of crime__. Crime in foreign country- Dishonorable discharge.. Drait evaders Evading justice__ Expatriates 267 302-304, 307 319 276 73, 128, 129, 311-313 319 73, 128, 129, 167, 180, 265, 271, 311, 312 Foreign-born wife of American citizen_. Foreign military service---- Foreign residence of citizens by birth.... Foreign residence of naturalized citizens.. Representation abroad of legitimate American enterprises_ Violation of United States laws... War power; travel in enemy country--. Generally. 167, 310 319 266 277-279, 318 61, 158-160, 165, 166, 175, 262–263 Journalists: Limitations on validity of passports_. Legislation pertaining to passports--. Pending bills_. Missionaries____ Passport, contents of Passport Office personnel.. 158, 165, 166 175, 177, 187, 185–186, 210-213, 264 377-380 Persons entitled to passports__-- 164, 210, 214, 323 Procedure followed in State Department in denying or issuing passport 62-66, Refusal of Passports: Peacetime.. War and national emergency- 69, 77, 177 167, 323 |