# Appellees Brief — United States v. Gay

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0439%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1924
- **Citation:** 264 U.S. 353

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0439%3A3. Public record. Not legal advice.