place of business 3. WILLE SET De sjen Propert, Cascata or the res of the United stres, as die me I . Ha e male a party. Jeden establish the merest, ami zze, or dent so z met and 2 su estan, Shed the court shai, order de pDBIL NCAA wife, to the Tie S2 = farm in Fran a naturalized in Frank CIET benest of Masse 1 to stay in Germany & am Den & whether pisan was at the times e. The facts distrused 15 the evidence are Fie case, with his ild aE & Er zur Dasa benzersip and Deeze and his wiže vozizued to live DOMI DAT TATLIDHC L Germany for the KATETEĆ Der besith, but ther cortinned me of her father, why was upwards of Mrs. Stet beled to take care of Y DR-Z-A E So, a charge of his farm de mam fav In Germany of shont craf if the ace fro he propery Ne definite fer the are of the as be test Dies, because iz 146 paint bought be and his wife, and b ́S a beure and am were a TH wife's father and mother J Dented a. De wes tarber (sred a forep in Germany, bu rested. I to use of is "Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in eveform.iy its laws, or when he has taken an oath of allegiance to any företen state "When any caturalized stizen shall have resided for two years in the forecen state from which he came, or for five years in any other foreign state at Ost be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during sud was. Po vided, however, that such presumption may be overcome on the preseP DRESAM of satisfactory evidence to a diplomatie or consular officer of the Unad States, under such rules and regulations as the Department of State nay, pe scribe: And provided also, that no American citizen shall be allowed 2 et patriate himself when this country is at war" Comp. St. $38809 Plaintiff made no further effort to leave Germany until after the Artistie In November. 1919, he applied to the Spanish consul at Kiel for a passport to the United States. The application was referred to the American authorities and the passport was refused on the ground that he "failed to overcome the 29174 -58 36 presumption of expatriation which arose against him in 1909 under the Citizenship Act of March 2, 1907." In 1920 plaintiff renewed his application for a passport through the American Commission at Berlin, and this was also refused by the State Department. After this last refusal, plaintiff applied to a German official and secured a passport to Holland. The passport was viséed there by the Mexican consul, and plaintiff proceeded to Mexico. In Mexico he was referred by some German official to the American consul. Plaintiff made application for a passport to the United States to the American chargé d'affaires in Mexico City, presenting his citizenship papers and his German passport, and secured the American passport in August, 1921. He returned to Nebraska and commenced the present suit in January, 1922. While the plaintiff was in Germany he took no active steps to become a German citizen, engaged in no business there, and took no part in the German government or in the war. He was not required by the German authorities to register, and was not questioned as to his citizenship. His property was not placed under supervision. In 1914 or 1915 he bought German bonds, as he explains, because of the popular furore. His brother-in-law in Nebraska, in charge of the property in the United States, reinvested there some $1,500 a year, the balance of the income not remitted to the plaintiff. Amongst other investments he purchased Liberty Bonds. Finally the property was seized by the Alien Property Custodian. Upon the trial plaintiff testified that he at all times considered himself an American citizen, that he never intended to abandon his citizenship, that he never intended to remain permanently in Germany, but at all times had the intention of returning to the United States and remaining there. The evidence shows that some of the statements purporting to have been made by the plaintiff in his application for passports were inconsistent with his testimony given in court, and, in some instances, that his former statements were untrue. In an application in 1919 he stated that he and his wife came to Germany in 1901, but that since then he had "made several trips to America." In 1920 he made affidavit that he and his wife came to Germany in 1901, "as we were both overworked and needed a rest," and that on their return to the United States in 1908 his "wife was again taken ill," and they returned to Germany in 1909. In his application to the American charge d'affaires in Mexico for a passport, it is stated that he had lived in the United States from 1885 to 1901, and from 1904 to 1919, and last left the United States in 1919. Plaintiff in his testimony denied that he made the last-mentioned statements, but stated that they must have been put in the application by mistake of the party who made it out for him. Emil Sindt, the brother-in-law of the plaintiff, testified that, when plaintiff and his wife went to Germany in 1901, he understood they were going only for a year or two; that when they returned, in 1908, plaintiff talked about going to California to live. Sindt further testified that no specific arrangement was made with him about the care of the property, but that he let it go because plaintiff always said he was coming back, and that no settlement was made in 1908, when plaintiff returned, because he (Sindt) thought they could make the settlement when plaintiff came back again. On this state of the evidence defendants contended in the court below that the presumption arişing under the Act of March 2, 1907, had not been overcome, and that therefore the plaintiff could not maintain the suit. Plaintiff contended that the statute of March 2, 1907, had no application to the case, and further that, even if it had, the evidence overcame the presumption. The trial court held that the Act of March 2, 1907, did apply, citing United States v. Howe (D. C.) 231 Fed. 546, but that the evidence was sufficient to overcome the presumption arising thereunder. A decree was therefore rendered for the plaintiff. We are strongly impressed with the reasoning and with the conclusion of the Attorney General in 28 Op. Atty. Gen. 504, to the effect that the Act of March 2, 1907, has no application to the case of a naturalized citizen, who, having returned to his native country and resided there more than two years, has thereafter returned to the United States, but that the act is limited to naturalized citizens while residing in foreign countries beyond the period stated in the act. We do not find it necessary, however, to pass upon the question of the proper construction of the act. Section 21 of the Act of March 2, 1907, as added by section 2 of Act March 4, 1923, amending the Trading with the Enemy Act, since this case was submitted, will probably prevent the question from arising hereafter in cases of this kind. [1] Conceding, but without deciding, that the act does apply to the case at bar, and that the presumption did arise against the plaintiff, yet the presumption was a rebuttable one. U. S. v. Howe, supra; Ex parte Gilroy (D. C.) 257 Fed. 110. Like rulings were made by the Secretaries 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, 346 190-194 190 161 Austria. Belgium Brazil Bulgaria_. China- 62, 107, 166, 191, 192, 201 62, 73, 75, 76, 98, 102, 106, 107, 109, 111, 116-119, 122, 123, Czechoslovakia. Denmark Egypt 192, 203, 204 73, 91, 92, 131, 132, 191-193, 201, 202, 208, 258, 262, 263 |