Section 3 of the Act of March 2, 1907, 34 Stat. 1228, in
providing that, when any naturalized citizen shall have resided for
two years in the foreign state from which he came, it shall be
presumed that he has ceased to be an American citizen, does not
apply to a retired officer of the Navy who resided abroad with the
permission of the Navy Department, reported to it each year as
required by the regulations, evidenced his willingness to respond
to the call of duty, and performed no act inconsistent with his
allegiance or his official status. P.
264 U. S.
356.
57 Ct.Clms. 424 affirmed.
Appeal from a judgment of the Court of Claims sustaining the
claim of a retired warrant machinist in the Navy for pay unlawfully
withheld.
Page 264 U. S. 354
MR. JUSTICE McKENNA delivered the opinion of the Court.
This appeal is for the review of a judgment of the Court of
Claims for the sum of $10,302.52 in favor of the appellee for pay
as a machinist on the retired list of the Navy from May 1, 1916, to
June 13, 1922 at the rate of $1,687.50 per year.
It is contested by the United States on the ground that Gay had
ceased to be an American citizen. For this, the Act of March 2,
1907, 34 Stat. 1228, is adduced, and that he, having expatriated
himself, abandoned his office as machinist in the Navy, the law and
regulations requiring that officers of the Navy must in all cases
be American citizens. The further contention is that from the date
of abandonment he was not entitled to pay.
The facts are not in dispute. Gay after serving as an enlisted
man in the Navy, was appointed, by warrant of the President, a
warrant machinist, the title of which office was changed by
subsequent legislation to machinist. He remained on the active list
until November 23, 1908, when he was retired from active service on
account of deafness.
He was born in Switzerland, May 19, 1856, and was admitted to
citizenship August 4, 1897, and had done no act inconsistent with
his allegiance, nor with his status as an officer of the Navy.
On retirement, he was given permission to leave the United
States for three successive years, and, on August 30, 1912, he was
authorized to remain abroad indefinitely. In accordance with the
permission, he has been residing in Switzerland, but has kept the
Bureau of Navigation informed as to his address, as required by the
Naval Instructions. He made one or more affidavits of continued
American citizenship before the American consul at Geneva.
Page 264 U. S. 355
He was registered as an American citizen at that consulate, and
received a registration certificate. On November 25, 1912, he
requested a renewal of his certificate, but was informed by the
consul that, since he had lived over two years in Switzerland, the
country of his birth, he would have to sign an affidavit to
overcome the presumption of expatriation. He signed such affidavit,
and, on November 26, 1912, he called at the consulate and asked
that the affidavit not be sent to the Department of State.
On January 11, 1916, he was notified by letter from the Navy
Department that he had been selected for duty in connection with
the Naval Intelligence Office in time of war, and requested, in
case of return to the United States and to Washington, to call at
that office, but "should you remain abroad indefinitely, and
opportunity offer, it is requested that you confer with the naval
attache at Paris." The letter was transmitted to him through the
naval attache at Paris, with request of acknowledge receipt, which
he did on January 28, 1916.
On February 24, 1916, the Chief of the Bureau of Navigation of
the Navy Department addressed him a copy of General Instructions
issued to naval officers abroad directing them to notify the
accredited naval attache of their presence, address, and probable
length of stay, etc., or if in countries or colonies to which no
naval attache is accredited, to make similar report to the nearest
United States naval attache practical.
On March 15, 1916, in accordance with this order, he notified
the attache at Paris, giving particulars in regard to his
residence, and expressing himself as ready and willing to leave
Switzerland whenever recalled to the United States by the Navy
Department.
On March 17, 1916, the receipt of the letter was acknowledged,
stating:
"2. In case you are in the vicinity of Paris, I would be greatly
obliged if you would call at the embassy in order to receive
certain confidential information
Page 264 U. S. 356
which I have been directed by the Navy Department to furnish
you."
"3. There is no immediate necessity of your coming to Paris at
present."
On June 19, 1916, and again on July 25, 1916, he was notified by
the pay officer of the New York Navy Yard, who had been carrying
his accounts and paying his monthly retired pay, that he, the
officer, had been directed by the Navy Department to make no
further payments to him, Gay.
On September 1, 1916, he wrote to the Chief of the Bureau of
Navigation of the Navy Department, Washington, requesting to be
informed of the reason for that action, stating that he was ready
to answer at any time for his action. No response seems to have
been made to his letter. On November 12, 1917, he informed the
Bureau of Navigation that he was able to perform sea or shore duty,
but, in the following month, it was officially stated that there
was no duty to which he "might be assigned." His name appeared
continuously on the officially published annual "Register of the
Commissioned and Warrant Officers of the Navy and Marine Corps"
down to and including that of January 1, 1917. He is carried on it
as a machinist on the retired list of the Navy, and under the
column "Present Residence or Duty" he is listed "Abroad." It does
not appear by what authority his name was omitted from the
register.
The contention of the United States is that, Gay having resided
for over two years in Switzerland, the place of his birth, the
presumption occurred that he had ceased to be an American citizen.
And this presumption, it is further contended, was not overcome by
"the presentation of satisfactory evidence to a diplomatic or
consular officer of the United States under such rules and
regulations as the Department of State may prescribe." Section 2 of
the Act of March 2, 1907, is cited for the contention. The section
provides as follows:
"When any naturalized citizen
Page 264 U. S. 357
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 regulations 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 contention puts out of view all of the other facts of the
case -- puts out of view the rights of Gay as an officer of the
Navy. To be such officer, he had to be a citizen, but, being such
officer, he had relations and rights besides those of citizenship.
And this was recognized -- recognized by him and recognized by the
Navy Department. His going and staying abroad was submitted to the
judgment and permission of the department, first in yearly
applications for three successive years and then by permission "to
remain abroad indefinitely." He reported to the Bureau of
Navigation his address each year as required by its regulations.
The department was therefore enabled to and did inform him that he
had been selected for duty, and directed him to confer with the
naval attache at Paris, which he did, giving particulars in regard
to his residence and willingness to respond to a call to duty. To
this the attache responded as follows:
"2. In case you are in the vicinity of Paris, I would be greatly
obliged if you would call at the embassy in order to receive
certain confidential information which I have been directed by the
Navy Department to furnish you."
"3. There is no immediate necessity for your coming to Paris at
present."
Up to this moment of time, he was an officer in the Navy, one
worthy of "confidential information," and it
Page 264 U. S. 358
is to be remembered that a war was in progress, a war in which
at any time this country might become engaged, and subsequently did
become engaged. A discontinuance of his pay came soon after; it was
as abrupt as it is unexplained, and we are induced to say
inexplicable. Gay, we repeat, was an officer of the Navy, and as
such he was subject to duties and as such he was entitled to
rights; for neglect or violation of duty, he was subject to
reprimand and, it might be, punishment, but punishment only after
charge and conviction. Sections 1229 and 1624, Rev.Stats.
* This was his
right even if there had been culpability in his actions. There was
none. We find no act of dereliction in his retirement nor
afterwards. All was done in submission to and under permission
granted by the Navy Department in exercise of law. By that law his
case must be judged. The act of March 2, 1907, has another purpose.
That act had only to do with the action of a citizen as such, he
having no other relations. His place of residence was an element in
making him a citizen, it might be regarded as an element in
continuing him a citizen and presumptions could be erected upon it,
and we are prompted to say it is a presumption easy to preclude,
and easy to overcome. It is a matter of option and intention.
The relation of an officer of the Navy to his place of residence
is entirely different. It is selected in submission to Navy
regulations, subordinate to his duty, subject to change and, that
it may be so, he must keep the Bureau
Page 264 U. S. 359
of Navigation informed of it. To these conditions Gay was at all
times in conformity.
The finding of the Court of Claims is that:
"He has always borne true faith and allegiance to the United
States, and had done no act inconsistent with his allegiance nor
with his status as an officer of the United States Navy."
Judgment affirmed.
* Revised Statutes, ยง 1624, being the Articles for the
government of the Navy, Article 36 of which provides:
"No officer shall be dismissed from the naval service except by
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
mitigation thereof."