Appellees Brief — United States v. Gay

oe.

is Rane he:

ya Tue Unirep Srares, Appellant, oe gat

v. eT te

. ALPHONSE Gay. Pg a

APPEAL FROM THE COURT OF CLAIMS.

BRIEF FOR APPELLEE. “a

Georer A. Kine,

Wituiam B. Kine, — ie

Georce R. Sxiecps,

Attorneys for Appellee.

eres “a . : ON STEER EOS

TABLE OF CONTENTS,

I. Statement of the Case l

IJ. Brief of Argument l

Never Dismissed from the Navy 2

Status of Retired Officers 6

Act 1907, Sec. 2 (34 Stat. 1228) 7

Requirements of Act 1907 . 10

Construction of State Department. 1]

Other Authorities ar ier er 13

Status of Naturalized Citizens . , 16

Officer not Within Act of 1907 eS >

Evidence and Findings 20

Conclusion —.” ' 22

TABLE OF CASES.

Banning v. Penrose, 255 Fed. pay: 161

Brown v. United States, 113 U.S. 568, 570, 571

Desmare v. United States, 93 a S. 605, 610

Gay v. U. 8. 57 C. Cls. 424 ge case) .

Givens v. Zerbst, 255 U.S. 11, 22.

Luria v. United States, 231 = S. 9, 25

Miller v. Sinjen, 289 Fed. 388, 392 .

Moore v. United States, 91 U.S. 270, 274 .

Nagle v. United States, 145 Fed. 302, 306 . .

Robinson v. B. & O. R. R. Co. ny U. poo B12 .

Runkle v. United States, 122 U.S. 543, 5

Sinjen v. Miller, 281 Fed. 889, ! a

Sturla v. Freecia, L. R. 5 App. Cases, 623, 643.

U.S. v. Anciens Etablissements, 224 U.S. 309, 330

United States v. Knight, 291 rong 129, 134

United States ». Perkins, 116 U. tag

United States v. Redgrave, 116 U. . 474.

United States v. Tyler, 105 U.S. “ 246

United States v. Wickersham, 201 U. 3. 390, 399

U.S. v. Wong Kim Ark, 169 U. 5. 649

Wildberger, 214 Fed. 508

Opinions of Attorney General.

Gossin’s case, 28 Opns. 504, 508, 510 .

Report on Navy Cases, 9 Opns. 212, 216

Stokes’ Case, 28 Opns. 325

Other Publications.

American Journal of International Law, Vol. 8,

1914, p. 483 .

Hearings, House C penaaittes on —_— ation aod

Naturalization, Serial 5-B, 1922 .

Navy Regulations 1909, 1913

Veto Message, Army Bill 1916, House ec. 1334,

64th Cong. Ist Sess.

il

1]

19

«

upreme dJourt of the [nited Piates

October Term, 1923.

Tue Unrrep Starrs, Appellant,

’. No. 205.

\LPHONSE Gay.

_

APPEAL FROM THE COURT OF CLAIMS.

BRIEF POR APPELLEE.

I. STATEMENT OF THE Case.

Alphonse Gay filed a petition in the Court of Claims

claiming pay as a Warrant officer, a machinist, on

the list of officers of the Nav retired from active

service, from May 1, 1916, to June 12 1922 (Seeond

amended petition, rec. pp. 1, 2: supplemental petition

pp. 3, 4.

The facts are set forth in the findings of the Court of

Claims (ree. 5-7). The summary in brief for United

States (pp. 1-4) should be gnored as Inaccurate and

argumentative. The court decided that the officer was

entitled to his retired pay as a machinist and gave judg-

ment accordingly. ‘The opinion was delivered Judge

Hay, and is reported 57 C. Cls. 424. The United States

appealed (foot p. 10).

Il. Brier or ARGUMENT.

The opinion of the Court of Claims so clearly states

its conclusions that this brief will be arranged in the

LT IS BET ae

ae Tae

| a

PR te Ee 4 ‘ a

4

order of the opinion, quoting each of its parts, followed

by supporting authorities.

Never Dismissed from the Navy.

The opinion opens (Record, pp. 7, 8):

“This is a suit brought by the plaintiff to recover the

retired pay of a machinist in the Navy, the plaintiff

having been retired as a machinist on November 23.

1908. He was paid his retired pay from the date of his

retirement up to May 1, 1916, but since that date his

retired pay has been withheld, and he alleges that there

is now due him the sum of $10,078.90 [amended to

$10,302.52]. He was notified on June 19 and July 25,

1916, by the pay officer of the New York Navy Yard,

that that officer had been directed by the Navy Depart-

ment to make no further payments to him. On Septem-

ber 1, 1916, he wrote to the Chief of the Bureau of Navi-

gation, Navy Department, Washington, D. C., request-

ing to be informed why his pay had been stopped. To

this letter no response Was made, and on May 24, 1917,

he brought this suit in this court.

“The effect of this action of the Navy Department

was to remove the plaintiff from his position as a retired

officer of the Navy and to deprive him of his rights as

such and of the emoluments guaranteed him as such

retired officer without giving him an opportunity to be

heard. The reasons given for this action by the Navy

Department are that the plaintiff under the act of

March 2, 1907, should be officially regarded as having

expatriated himself; and that having so expatriated him-

self the plaintiff had abandoned his office as a machinist

in the Navy in view of the requirement of the law and

regulations that officers of the Navy must in all eases

be citizens of the United States. It will be observed

that these reasons and conclusions were never communi-

cated to the plaintiff, and he was given no opportunity

to make answer to them.”’

This summary is to be read in connection with the

more detailed statement contained in the findings

RENEE VA ey 89 A OR NEN

3

~

iy

(Finding III, pp. 5-7). These findings show that in

fact the appellee was never dismissed from the Navy.

On the contrary, he continued to be recognized by

various officers of the Navy Department, as well as by

the Naval Attaché at Paris, as an officer of the Navy

down to about three months of the time that the pay

officer of the New York Navy Yard notified him that

the pay officer had been directed by the Navy Depart-

ment to make no further payments to him (Finding III,

near top p. 7). It does not even appear directly that

such instructions were sent, but only that the pay officer

alleged that they were. No actual removal was

attempted. Such removal would not only have been

unauthorized, but is directly prohibited by the following

provisions:

Revised Statutes, See. 1229. * * * And no

officer in the military or naval service shall in time of

peace be dismissed from service except upon and in pur-

suance of a sentence of a court-martial to that effect, or

in commutation thereof,

Sec. 1624. The Navy of the United States shall be

governed by the following articles:

Art. 36. No officer shall be dismissed from the naval

service except by the order of the President or by

sentence of a general court-martial: and in time of

peace no officer shall be dismissed except in pursuance

of the sentence of a general court-martial or in mitiga-

tion thereof.

Art. 64. Within the meaning of the foregoing articles

unless there is something in the context or subject

matter repugnant to or inconsistent with such construc-

tion, officers shall mean commissioned and warrant

officers, and paymasters’ clerks; superior officers shall be

held to include mates and petty officers of the Navy

and noncommissioned officers of the Marine Corps, in

addition to the officers enumerated. This article is not

one of the *‘ Articles for the Government of the Navy,”

as contained in the statutes, but is appended in explana-

tion thereof.

POCONOS OL eral we ee eo le ent

4

The construction of the word “officers,” in the above

article as including a warrant officer is in secordance

with the decision of this court in Brown v. United Slates,

113 U.S. 568, 570, in which it was held that when the

term ‘‘officer”’ is used in a statute relating to the Navy

it includes a Warrant as Well as a commissioned officer,

Warrant officers of the Navy are appointed by the

President. Revised Statutes, Sees. 1405, 1406. Ma-

chinists are created asa class of warrant officers by the

Navy Personnel Act of March 38, 1899 (Chap. 413, Sees,

14, 15, 30 Stat. 1004, 1007, 1008). Like other officers,

they may be dismissed only by sentence of court mar-

tial. Stokes’ Case, 28 Opns. 325.

In United States vy. Redgrave and Perkins, 116

U.S. 474, 483, it was held that where under a mis-

take of law the Navy Department undertook to dis-

charge a cadet engineer from the naval service at the

end of his academic course at the Naval Academy, such

action is invalid as against statutory provisions pro-

hibiting the discharge of such cadet otherwise than for

misconduct or upon sentence of a court-martial (116

U. S. 485).

In Runkle v. United States, 122 U.S. 543, a retired

officer was sentenced by court-martial to dismissal from

the Army. The proceedings were approved by the

Secretary of War, but not by the President. .\ sub-

sequent President disapproved them. It was _ held

that the order of dismissal required by law the approval

of the President to be effective, and that the officer

had never been out of the Army.

In United States v. Wickersham, 201 U. 8. 390, an

officer in the civil service Was dismissed by a local

superior, but not by the appointing power, the head of

the department. The court said (p. 399):

CRN CU Si

evhte ngs

pote A

‘““We see no reason in such an attitude of the case,

TRE ES Rp RVO SF Reds MOA SEPP

5

where the wrongful suspension is clearly established,

and the ability of the incumbent to discharge the duties

of his office affirmatively found, for withholding from

him the compensation given by law to an incumbent of

ihe place. If this be not so, then a regular and duly

qualified employeé in the public service protected by

this statute and the orders of the President made in

pursuance thereof, ean be deprived of the benefitand

emolument of his position by a wrongful and illegal sus-

pension from his duties. We do not think that such a

contentioi can be sustained either by reason or author-

ity. Where an officer is wrongfully suspended by one

having no authority to make such an order, he ought

to be, and is, entitled to the compensation provided by

law during such suspension.”

Far from being removed, he was continuously recog-

nized as an officer of the Navy down to the time of the

stoppage of his pay, and even afterwards.

The jurisdiction of the Navy Department over this

officer was asserted by the orders given him January 11,

1916, and again February 24, 1916, direct from the

Navy Department requiring a report from him to the

Naval Attaché at Paris by letter. With these orders

he promptly complied. March 15, 1916, he expressed

his readiness and willingness to leave Switzerland when-

ever recalled to the United States by the Navy Depart-

ment (Rec. Finding III, first half p. 6). The control

of the Navy Department over him as a part of the

naval service of the United States was thus strongly

asserted by the Navy Department and acknowledged

by himself down to within two months of the time his

pay was discontinued.

No notice was given him of any removal. An appli-

cation to the Chief of the Bureau of Navigation asking

why his pay had been stopped met with no response

(p. 7, Par. 3).

RPP Tete He ADDON were ; os ay

6

November 12, 1917, he wrote the Bureau of Naviga-

tion offering his services on sea or on shore. It was

stated at that time, “There is at present no duty in this

office to which the above subject might be assigned”

(middle p. 7).

The annual Navy Registers, made up as of the first

of January of each year, showing the exact status of

every officer, active and retired in the Navy, show him

down to and including January 5, 1917, as a machinist

on the retired list of the Navy, and under the column

“Present residence or duty,’’ he is listed ‘‘ Abroad.”

This last date was eight months after that from which he

had received no pay. (See ‘‘ Register of the Commis-

sioned and Warrant Officers of the United States Navy

and Marine Corps,” January 1, 1917, House Doc. 1758.

64th Cong. 2d Sess. pp. 218, 219.)

Status of Retired Officers.

A retired officer remains a part of the available mili-

tary force of the country. By act of June 7, 1900 (Chap,

859, 31 Stat. 684, 703), ““Any naval officer on the re-

tired list may in the discretion of the Secretary of the

Navy be ordered to such duty as he may be able to

perform at sea or on shore.” This statute was limited

to twelve years, but was reenacted August 22, 1912

(Chap. 335, 37 Stat. 328, 329), without time limit and

with the insertion of the words ‘with his consent.”

It was decided in United States v. Tyler, 105 U.S. 244,

246, that retired officers of the Army still remain a part

of the Army. The same point was stated in an amplified

form in President Wilson’s veto message of the Army

appropriation bill of 1916 objecting to a provision

of the revised Articles of War in that bill exempt-

ing from military jurisdiction retired officers not on

LEE PARP SRT RINE ER NN IE INR ORIGIN 9 EONS Ron OV SP a PRT TEESE

Lod

‘

active duty. He said (House Doc. 1334, 64th Cong.

Ist Sess. p. 2):

“Courts and Attorneys General have, in a long line of

decisions, held that officers of the Army on the retired

list hold public office. It thus appears that both the

legislative and judicial branches have drawn a sharp

distinction in status between retired officers, who are

regarded and governed at all times as an effective

reserve of skilled and experienced officers and a potential

source of military strength, and mere pensioners, from

whom no further military service is expected. Officers

on the retired list of the Army are officers of the Army,

members of the Military Establishment distinguished

by their long service, and as such examples of discipline

to the officers and men in the active Army. Moreover,

they wear the uniform of the Army, their edueation and

service hold them out as persons especially qualified in

military matters to represent the spirit of the Military

Establishment, and they are subject to active duty in

time of national emergency by the mere order of the

Commander in Chief. They are, therefore, members

of the Army, officers of the United States, exemplars of

discipline, and have in their keeping the good name and

the good spirit of the entire Military Establishment

before the world. Oceupying such a relation. their

subjection to the Rules and Articles of War and to trial

by general court-martial have always been regarded as

necessary in order that the retired list might not heeome

asource of tendencies which would weaken the discipline

of the active land forces and impair that control over

those forces which the Constitution vests in the Presi-

dent.’

Act of 1907, Sec. 2 (34 Stat. 1228) Construed.

The Court of Claims thus quoted and construed this

act (pp. 8, 9):

“The provision of the statute under which the Navy

Department held that the plaintiff had expatriated him-

self is as follows (34 Stat. 1228):

OA Re iON FA ay ON eA SD I ADP Do —

8

«See. 2. That any American citizen shall be deemed to

have expatriated himself when he has been naturalized

in any foreign State in conformity with its laws, or when

he had taken an oath of allegiance to any foreign State.

“«When any naturalized citizen shall have resided for

two years in the foreign state from which he came, or for

five years in any other foreign state, it shall 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 said years: Provided, however, That

such presumption may be overcome on the presentation

of satisfactory evidence to a diplomatic or consular

officer of the United States, under such rules and regu-

lations as the Department of State may prescribe: And

provided also, That no American citizen shall be allowed

to expatriate himself when this country is at war.’

“The act (Ch. 2534) is entitled ‘An act in reference to

the expatriation of citizens and their protection

abroad.’ The purpose of the act is to relieve the

Government of the obligation to protect citizens residing

abroad after the limit of two or five years, when their

residence there is not shown to be of such a character

as to warrant the presumption that they intend to

return and reside in the United States. After the time

limit has expired it is presumed that the citizen does not

intend to return, and it is necessary, in order that he

may have the protection of this Government, for him to

show affirmatively that it is his bona fide intention to

return to the United States to live. The essential

thing under the act is the intention to return to and

reside in the United States. Op. Atty. Gen. 28, 504,

508, 509. The provisions of the act are penal and are

not to be extended to include any persons not within its

purview.”

The opinion thus referred to in Gossin’s case, 28 Opns.

504, 508, 509, was to the following effect:

A native of Syria, naturalized in the United States,

left this country for his native land, married a Syrian

woman, and remained in that country for more than two

years without making the required declaration of inten-

NRE OR INE Se A A BRS: TT IM Re? CMU SSD ETT BIEN ¢

9

tion to return to the United States. After a lapse of

two years, he returned to the United States accompanied

by his wife. Their right to enter this country being

questioned, the Attorney General held that both hus-

band and wife were citizens of the United States, and as

such were entitled to be admitted to the country. It

was held that any presumption arising from foreign

residence was rebuttable.

The history of the act is thus stated in that opinion

(28 Opns. 508-510) :

“As above stated, the act is entitled ‘An Act in

reference to the expatriation of citizens and their pro-

tection abroad,’ and it appears that it was passed at the

instance of the Department of State. In reporting the

bill to the House, the Committee on Foreign Affairs

said (House Report 6431, 59th Cong. 2d Sess.):

“This bill follows in its general lines the reeommenda-

tions of the Department of State. * * *

“*Perhaps the most important provision of the bill is

desired by the State Department to guard against

complications in which this country has often been

involved. All desire that the flag of this country should

protect an American citizen to the fullest extent. But

none of us desire that some foreigner who does not

intend to cast his lot permanently with us should

endeavor to avail himself of the flag as a fraudulent pro-

tection. Many foreigners come here, become natural-

ized, and then return to their own countries or migrate

to other parts of the world without any intention of

returning to this country. They have not become citi-

zens in good faith, but they seek to avail themselves of

the protection of our citizenship in avoiding responsi-

bility to which they may be subjected in other parts of

the world.

““This is not right. The citizenship of the United

States should not be sought or possessed for commercial

or dishonest ends. To guard against this evil, this bill

provides that a naturalized citizen who leaves this

country and dwells elsewhere continuously for five

10

years shall be presumed to have abandoned his citizen-

ship. ‘This presumption can be overcome, but such a

provision as this would be a great assistance to the

Department of State, would avoid possibilities of inter-

national complications, and will prevent those who are

not entitled to its protection from dishonestly hiding

under the American flag.’

“As further showing the purpose of the act, the

remarks of Mr. Perkins, who reported the bill from the

comunittee and had charge of it in the House, are pertin-

ent. In the course of debate it was said (Cong. Ree,

Vol. 41, pt. 2, p. 1466):

“*Mr. Bennet of New York. Mr. Speaker, I entirely

agree with the gentleman from Colorado (Mr. Bonynge)

as to section 3. I think it is too broad. In addition

to the consideration that he urged upon the House,

there is also the consideration of property rights and of

property rights inhering in American-born citizens who

might take through these foreign-born naturalized

citizens. This bill will apply toa man who has now been

abroad four years and eleven months, and if he remains

abroad the other month he would be foreed, under this

statute, to become no longer a citizen of the United

States, but a citizen of the country where he was.

“*Mr. Perkins. Allow me to correct the gentleman.

That certainly is not the result of the statute at all.’

“*Mr. Bennet of New York. Why not?’

“*Mr. Perkins. The statute provides that, having

remained there five vears continuously, there shall be a

presumption which, unless he satisfies the officers of the

State Department, their consuls, or ministers to the

contrary, Would authorize the State Department to

refuse to extend him protection. It can not affect any

other rights, which, of course, he can present in court.

No presumption is conclusive on a court. [t is a mere

presumption, but the presumption would protect the

State Department. That is the object of the bill and

the result of the bill and the only result of it.’”’

Requirements of Act of March 2, 1907.

The act of 1907 (Chap. 2534, 34 Stat. 1228, 1229),

EE RR. Be TIA Re PRS

1]

is entitled “An Act in reference to the expatriation of

citizens and their protection abroad.’ Its provisions

thus have reference to those two distinct objects. The

first sentence of Section 2 provides two conditions and

two only in which an American citizen shall be deemed

to have expatriated himself:

1. ‘When he has been naturalized in any foreign

state in conformity with its laws”’;

2. ‘‘When he has taken an oath of allegiance to any

foreign state.”’

Neither of these acts took place in the present case.

The provision immediately following as to residence

for two years in a foreign state from which he came

merely creates a presumption which may be overcome.

No mention of expatriation or of cancellation of citi-

zenship is contained in this second clause of Section 2.

Congress is not to be deemed to have intended to prescribe

a forfeiture of citizenship to residents abroad in the

absence of explicit language to that effect.

Construction of State Department.

The construction placed upon the provision by the

State Department is shown by a statement of Hon.

Fred K. Nielsen, solicitor of that department, June 8,

1922, in the hearings before the House Committee on

Immigration and Naturalization, 67th Congress, 2d

Sess. Serial 5—-B, ‘ Naturalization and Citizenship of

Women,” pp. 576, 577, 578:

“Now, let me pass to the act of March 2, 1907, in

regard to expatriation, as we call it, by continued resi-

dence abroad. 1 do not see why you inject that feature

into any pending legislation. The law says that per-

sons who live abroad for a certain period shall be under

the presumption that they have ceased to be American

citizens.

ia Sata hae et

ERTL I LCS NE TF LOTTI : CEL RE ee —

12

‘The court of last resort has never construed that

very disagreeable provision. ‘The Federal courts have

differed on it; attorneys general have differed on it.

Mr. Wickersham once said that it simply meant that

a person living abroad for a stated period should not

be regarded as entitled to the protection of his Govern-

ment while so resident. That is the rule that the

Department of State is proceeding on. And for many

reasons which I would not bother you with I think that

is the only sound rule.

* * . « * * * * *

“Mr. Kleezka. If I understood you correctly, you

said that the Department of State followed some court

ruling holding that an American citizen living abroad

more than two years has not lost his American citizen-

ship—that is, during the first two vears he does not lose

his right of protection?

‘*Mr. Nielsen. No; not until after the «wo years.

‘*Mr. Kleezka. After the two years he loses it?

‘*Mr. Nielsen. Nothing happens to him until he has

been absent two years in the country of his origin, or

five years in any other country. But unless he follows

a certain procedure prescribed by statute, after those

periods he is regarded as losing the right to protection.

“Mr. Kleezka. But not his citizenship?

‘“Mr. Nielsen. But not his citizenship.

“Mr. Kleczka. Notwithstanding that the law says

he shall be deemed to have lost his citizenship?

“Mr. Nielsen. Yes; but that is very different from

saying that his citizenship is cancelled. You create

citizenship by judicial action, and you cancel it by judi-

cial action; and I hope nobody will ever take the view

that Congress has enacted a statute whereby you can

cancel citizenship by a mere administrative procedure

not specifically described.”

In American Journal of International Law, Vol. 8,

1914, in ‘‘Observations on the New German Law of

Nationality,” by Mr. Richard W. Flournoy, Jr., assist-

ant solicitor of the State Department, it was said of

the clause in question (p. 483):

SRNR LAE SY NUS RIA RE LOREEN OE NER PHRASE NEON aD

13

“The precise meaning and effect of the statutory

provision last quoted was for some time in doubt, but

it seems to be pretty generally agreed now that its

object is to furnish a definite rule for determining when

protection should be withdrawn from naturalized

citizens residing abroad, and that the presumption

which it raises never becomes conclusive and is cancelled

in case the person concerned returns to this country to

reside permanently.’

Other Authorities.

In re Wildberger, 214 Fed. 508, the court said of the

act under consideration:

“The provisions of the act of March 2, 1907, are

highly penal, and therefore by every accepted canon of

construction are not to be extended to include any

persons not within its purview.”’

In Sinjen v. Miller, 281 Fed. 889, the court said in

regard to alleged expatriation of an American citizen of

German birth (p. 891):

“Tam 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 rerounce 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.”

This decree was affirmed by the Cireuit Court of

Appeals, Willer v. Sinjen, 289 Fed. 388. The case was

one of a native of Germany, and reference was there

made to the act of March 4, 1923, to amend the Trad-

ing with the Enemy Act (42 Stat. 1511, 1516, Chap.

285):

“Sec. 21. That the claim of any naturalized Ameri-

can citizen under the provisions of this Act shall not

be denied on the ground of any presumption of expatria-

14

tion which has arisen against him, under the second

sentence of section 2 of the Act entitled ‘An Act in

reference to the expatriation of citizens and their pro-

tection abroad,’ approved March 2, 1907, if he shall

give satisfactory evidence to the President, or the court,

as the case may be, of his uninterrupted loyalty to the

United States during his absence, and that he has re-

turned to the United States, or that he, although

desiring to return, has been prevented from so return-

ing by circumstances beyond his control.”

While this provision has no direct bearing on the

present case, it does show the legislative construction

of Sec. 2 of the act of March 2, 1907, just as the cases

we are citing show the judicial construction. It will

not be supposed that Congress was here extending a

special privilege to German born citizens claiming

the return of their property from the Alien Property

Custodian, while withhholding the same right from a

naturalized American citizen born in a friendly country

and who had worn with honor and was still entitled to

wear the uniform of the United States Navy.

The court (289 Fed. 392) thus specifically approved

= above quoted opinion of Attorney General Wicker-

sham:

‘‘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 coun-

tries beyond the period stated in the act.”

In United States v. Knight, 291 Fed. 129, the court

said on direct application of the government to cancel a

certificate of naturalization (p. 134):

15

“It must be borne in mind these proceedings are to

annul a solemn judicial grant of and by the United

States to defendant, and ‘nothing will warrant can-

cellation of his grant of citizenship but clear, unequivo-

val, and convincing evidence, that in quantity and

quality inspires confidence and produces conviction of

the truth of the charge virtually beyond reasonable

doubt.’ U.S. v. Sharrock, (D. C.) 276 Fed. 32.”

In Banning v. Penrose, 255 Fed. 159, 161, *he court

said:

“The United States attorney also insists that. even

if Banning was properly naturalized, he afterwards

expatriated himself by his conduct in going to Germany

and residing there some time, in Berlin. The authorj-

ties all are (and it would be useless to refer specifically

to them) that a man who has become a naturalized

citizen of one country, and goes back to the country of

his origin, may stay there indefinitely, if his purpose is,

all the time, in his mind, to retain his citizenship in the

country of his adoption and to return there some time

in the future. It is a question more of intention than

anything else. That is the law as contained in all the

decisions and the state papers read by counsel in this

argument. Of course, various questions arise as to

how his intention can be shown and in what Way it can

be shown.

“I do not think that there is anything in this case to

show clearly that Mr. Banning ever intended not return-

ing to the United States. On the contrary, every part

of the evidence, which I will not undertake to go into

in detail, and some of it very st rongly, indicates that

his intention was to retain his home in the country of

his adoption. The evidence very clearly shows that

Banning had an old father in Germany to whom he was

devoted and whom he desired frequently to visit, and

this seems to have been very largely the motive which

actuated him in going over there, while from his own

evidence it is clear that he enjoyed the life of Berlin

and had rooms, as if expecting to remain there a while.

ESET RS BY CORY HME Nn AT BAKE ION RINSE TON SE : we ” OIA PR ORR SRD a

16

‘Believing that he was regularly naturalized, the

evidence that he intended to take up a permanent resi-

dence in Germany should be reasonably clear. It is

not so here.”

Of course all this applies with greatly added force to

an officer of the Navy having express permission from

the Department to reside abroad indefinitely.

The presumption arising under Sec. 2 of the act of

1907, is no stronger than that established by See. 15

of the act of June 29, 1906 (34 Stat. 596, 601, Chap.

3592), that a naturalized citizen taking up permanent

residence in a foreign country within five years of his

naturalization shall be presumed to have become natur-

alized without intention to become a permanent citizen

of the United States.

This court has said in regard to that section, Luria y.

United States, 231 U.S. 9, 25:

“It will be observed that this provision prescribes

a rule of evidence, not of substantive right. It goes

no farther than to establish a rebuttable presumption

which the possessor of the certificate is free to over-

come.

Status of Naturalized Citizens.

The act of July 27, 1868 (Chap. 249, 15 Stat. 223),

embodied in Revised Statutes, Secs. 1999, 2000, 2001,

states a fundamental principle as to the equality of right

of a naturalized with a natural born citizen of the

United States. Under it every United States citizen

of foreign birth has precisely the same rights and is

entitled to the same protection as one born in the

United States.

In United States v. Wong Kim Ark, 169 U.S. 649,

this court decided that a person of pure Chinese blood

born within the United States is a native born citizen.

LOFTS NAA ALP OMAN 7 ee OTA LN IND A MAS! My ROT TN ALE AEM ORES LSE Baas BT

17

The rule contended for by the United States would ex-

tend to such persons the protection of our laws to an

extent beyond that accorded to Americans of the type

of Carl Schurz, Franklin K. Lane. or Knute Nelson,

just because each of these splendid exemplifications of

Americanism happened to be born under a foreign

flag. A view so contrary to the first principles of

American citizenship should be repudiated.

The Officer not Within the Act of 1907.

The Court of Claims on this point says (pp. 9, 10)

“From the facts proved it appears that the plaintiff

does not come within the provisions of the act. He was

an officer of the United States Navy who went abroad

with the permission of the Navy Department; that

permission was repeatedly renewed. and while living in

Switzerland under this permission of the department

his pay as such officer is taken from him without any

reason therefor being given to him. It is true that,

acting upon the opinion of a subordinate officer of the

department that he had expatriated himself, his pay

Was stopped. But all the facts in the case were

apparently not submitted to the department, and even

if they had heen we are of opinion that it was not in the

province of the Navy Department. or of any of its

officers, to pass upon the rights of the plaintiff and to

declare that he had expatriated himself, and thereby to

dismiss him from the Navy, and take from him’ his

retired pay to which he was entitled under the law, and

which he had earned by long active service in the Navy.

The act of March 2, 1907, was only intended to author-

ize the State Department to refuse to extend its protec-

tion to citizens who, having remained in a foreign

country two or five years continuously, failed to satisfy

the officers of the State Department that they intended

to return to and reside in the United States. The act

does not affect any other rights.

“In the case at bar the plaintiff, when his attention

Was called to the fact that he had resided in Switzer-

PNG AT EN RADE A IE tl EID IT HAN

18

land, the country of his birth, for more than two years

continuously, promptly made the affidavit required of

him by the consular officer. He complied with the law,

although he might well have insisted that he did not

come under its provisions, and having complied with it.

and rebutted the presumption raised by the statute, he

ean not now be held to have expatriated himself. He

presented satisfactory evidence to a consular officer of

the United States of his intention to return to and liye

in the United States.

“The fact that the affidavit was not sent to the De-

partment of State has nothing to do with its force and

effect, for, as far as this record shows, it Was not neces-

sary to its validity that it should be forwarded to the

department. Having once made the affidavit it was not

necessary under the provisions of the act to make one

every two vears.

“The facts show that the plaintiff intended to return

to the United States to live: and moreover, it is shown

that the plaintiff when war was declared promptly

tendered his services to his Government.

“The court is of opinion that the plaintiff has not

expatriated himself, and is still a citizen of the United

States. He is therefore entitled to all his rights as such,

and is entitled to his pay as a retired officer of the Navy

from May 1, 1916, up to the present time.”

No presumption of expatriation of a naturalized

American citizen who is also an officer of the Navy ean

be indulged where his residence abroad is by permission

of the Navy Department to which he is responsible.

Shortly after his retirement from active service, he

was in 1909, granted permission to leave the limits of the

United States for a period of one year from September

16, 1909. August 17, 1910, he was authorized to

remain abroad for one year from September 16, 1910.

September 12, 1911, he was authorized to remain

abroad for a period of one vear. August 30, 1912, he

Was authorized to remain abroad beyond the limits of

the United States indefinitely (Finding II], foot jp. 5).

19

The Bureau of Navigation was kept informed of his

address by letters written annually or oftener (top p. 6).

The Navy Registers as we have seen (end of Finding

IIT, ree. middle p. 7, ante, p. 6), show him during all

this period down to and ineluding January 1, 1917, as

residing abroad, so that his residence in his native

country Was not only with full knowledge of the Navy

Department but by its express authority. Under these

circumstances no possible presumption of abandonment

of citizenship could arise. The mere fact that he was

residing abroad by departmental permission, coupled

with the fact that the Navy Department at any time

had power to revoke his permission to go bevond the

limits of the United States is sufficient to rebut any

presumption of abandonment of American citizenship.

The Navy Regulations of 1909, which were in force

when this officer first went abroad provide (Art. 234):

“(1) Every officer of the Navy or the Marine Corps

shall keep the Bureau of Navigation or the commandant

of the Marine Corps, respectively, informed of his usual

residence and of the address of his wife or next of kin.

When ordered to his home he shall. upon the receipt of

the order, certify upon it his place of residence, which

must in all cases correspond to that which he has

previously reported to the Bureau of Navigation or

Headquarters of the Marine Corps.

igs Noofficer, active or-retired, shall change his usual

residence without permission of the Bureau of Naviga-

tion.”

Also from same Regulations, Art. 1526:

“Permission to leave the United States will be granted

only by the Secretary of the Navy.”

Similar provisions are in the later Naval Instructions

of 1913, Arts. 704, 705, 706, referred to in the findings

top p. 6.

20

Notwithstanding that the officer was not within the

terms of Sec. 2 of the act of 1907, he complied with it.

Nothing in either the law or regulations prescribe how

often the affidavit to overcome the presumption of

expatriation should be repeated. He made one or more

such affidavits (rec. p. 6, end of Ist par.), one being in

1912 (p. 6, end of 2d par.). A failure, if any occurred,

to register annually at the American Consulate affected

no right of citizenship.

The following finding of the Court of Claimsabsolutely

rebuts any presumption of any intent to abandon his

American citizenship:

‘“*He has always borne true faith and allegiance to the

United States and has done no act inconsistent with his

allegiance nor with his status as an officer of the United

States Navy.”’ (Finding II, middle p. 5.)

Evidence and Findings.

The opinion of the Court of Claims concludes as

follows (top p. 10):

“The defendant’s attorney has asked us to make

certain findings based upon affidavits made by certain

officers of the Government. These affidavits are merely

ex parte statements and are not competent evidence.

The persons who made the affidavits could have been

examined by the defendant. The fact that they were

not leaves the court to infer that the evidence which

they might have given would not have stood the test of

scrutiny. At all events there is no reason to depart

from a long and well established rule.

‘‘For the reasons above given the court is of opinion

that the plaintiff is entitled to recover. It is so

ordered. ”’

The rules excluding affidavits as evidence of facts are

in full force in the Court of Claims.

21

In Moore v. United States, 91 U.S. 270, this court said

(p. 274):

“We think that where Congress has not provided,

and no special reason demands, a difierent rule, the rules

of evidence as found in the common law ought to

govern the action of the Court of Claims.”

The statute requires that each party have an oppor-

tunity to examine the witnesses of the other. (Judicial

Code, See. 169, March 3, 1911, Chap. 231, 36 Stat.

1140.)

The rules of this court with reference to appeals from

the Court of Claims exclude the sending up of any

evidence and make the findings of fact conclusive.

This court has said in Desmare v. United Slates (93

U. 8. 605, 610):

“The findings of the Court of Claims furnish the

facts we are to consider, and we can not look beyond

them. For the purposes of this ease they import

absolute verity and conelude both parties, ”’

In United Siates v. Anciens Etablissements (224 U. Ss.

309, 330) the court said:

“The finding determines the matter, being in the

nature of a special verdict of a Jury.”

Thus the findings are conclusive in this court on

appeal. No different case ean be presented here from

that shown in the findings of the Court of Claims.

Robinson v. Baltimore & Ohio R. R. Co, 222 U. 8.

506, 512:

Givens v. Zerbst, 255 U. 8. 11, 22;

Nagle v. United States, 145 Fed. 302, 306:

Sturla v. Freecia, L. R. 5 Appeal Cases, 623, 643.

22

CONCLUSION.

This officer served faithfully on the active list of the

Navy as an enlisted man and warrant officer for over

twenty years. He became a naturalized citizen of the

United States after the performance of enlisted service

but before being appointed to office in the Navy. He

was retired in 1908 for disability incurred in the course

of his long and faithful service. After his retirement,

he each year requested and obtained permission to be

allowed to remain abroad, until in 1912 the permission

Was made indefinite as to time. Unless such permis-

sion can be used as a trap for the unwary, he can not be

held to have abandoned his American citizenship so

long as he was availing himself thereof. On January

11, 1916, he was officially notified by the Director of

Naval Intelligence of the Navy Department that he had

been slated for duty in time of war (Finding III, middle

p. 6). This shows that the permission to remain

abroad was regarded as still continuing in force. His

permission to remain abroad was expressly recognized

by the statement made in that letter, ‘“‘should you

remain abroad indefinitely, and opportunity offer, it is

requested that you confer with the naval attaché at

Paris.”’ (Finding II], middle p. 6.) With this last

direction he fully and strictly complied (last half p. 6,

top p. 7). Only shortly afterwards he was notified that

his pay Was stopped. His name continued to appear on

the Navy Register after as well as before the stoppage

of his pay. Inquiry as to the reason for the stoppage

and a statement of his readiness to answer for his actions

met with no response. After the outbreak of the war,

he still received a circular letter addressed to all retired

officers and November 12, 1917, he wrote the Bureau of

Navigation “stating that he was able to perform sea or

23

shore duty; that his health was in very good condition,

and that the deafness for which he was retired was

improving; that he could speak French fluently; and

that a call to any duty to which the department would

see fit to assign him would be gladly received.” (Find-

ing III, one-third down p. 7.)

His declarations and conduct at all times have been

those of a loyal citizen of the United States and a faith-

ful officer of its Navy. He has never been removed

from office. He therefore still holds office and is

entitled to its emoluments. His treatment by execu-

tive officers of the Government has been singularly

undeserved by one who served his country faithfully

for twenty years, received a medal of honor, and in-

curred physical disability in her service.

We can not more appropriately conclude this brief

than with the eloquent words ot Attorney General

Jeremiah S$. Black in his report on Navy cases, 9 Opns.

212, 216:

“To strike a lawyer or a seaman in the middle or in

the decline of life ignominiously from the rolls of his

profession, is an injury far more severe than to confis-

cate the lands of the farmer or the goods of a merchant.

It may be that some of our naval officers have com-

mitted crimes atrocious enough to deserve this extreme

and frightful penalty, but-God in his merey forbid that

the people of this nation shall ever become tame enough

patiently to see it inflieted even on the guilty, without

the full sanction of their ordained and established law.”’

GEORGE A. KING,

WituraM B. Kina,

GEORGE R. SHIELDs,

Attorneys for Appellee.