HULBERT, District Judge.
This contested petition for citizenship presents a knotty but interesting question of statutory construction.
Herman Rothschild, the petitioner, was born in Germany August 5, 1905, and entered the United States for permanent residence on February 26, 1936.
At that time the basic law for admission to citizenship required that it appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he had resided continuously within the United States five years, at least. Act of July 29, 1906, C. 3592, 34 Stat. 596, Section 4, subdivision 4, 8 U.S.C.A. § 382.
Under that Act all questions as to whether or not an absence from the United States constituted a break in the continuity of the alien's residence were left to the determination of the court at the time of the hearing. Decisions varied from the strictest rigidity to the greatest liberality, depending upon the particular facts in each case.
In United States v. Dick, D.C., 291 F. 420, the petitioner, a native of Scotland, came to the United States at the age of 16 with his parents and went directly to Schenectady, New York, where the family took up its residence and the petitioner almost immediately entered the employ of the American Locomotive Company on the 13th day of October, 1903, and remained continuously in its employ except for a period of two years when he was a student at Union College. In July 1913 he was sent by the Company to the office of its sales agents in Santiago, Chile. He was later transferred to Buenos Aires, and thereafter to Rio De Janerio, where he was in charge of a subsidiary of the American Locomotive Company at the time of the final hearing on his application for citizenship. His duties while so employed necessitated frequent trips to other parts of South America, as well as trips to Europe and the United States; during all of that time the family home was in Schenectady and while he was absent therefrom in the service of his employer, he contributed more than one-half of the expenses of maintaining it; he never married or purchased a residence in any foreign country, but returned to his home in Schenectady as often as business affairs would permit. On the 5th day of November, 1921, he filed in the Supreme Court of the State of New York, County of Schenectady, a petition to be admitted as a citizen of the United States, and after a hearing in open court, the objections of the examiner that the respondent was not entitled to citizenship having been duly considered and overruled, he was admitted and a certificate of naturalization in due form was issued to him. Thereupon the Government brought a proceeding to cancel the certificate of citizenship contending that Dick had not continuously resided in the United States for five years immediately preceding his petition as required by the naturalization statute. In a well considered opinion, the petition was denied.
This, and other cases, seem to have brought about the first legislative recognition of the "absence from the country" exception.
The Act of June 29, 1906, C. 3592, 34 Stat. page 596, reads:
"Sec. 4. That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise:
"First. * * *
"Second. * * *
"Third. * * *
"Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, * * * and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record." 34 Stat. at page 598.
The Act of March 2, 1929, C. 536, 45 Stat. 1512, provides:
"Sec. 6(b) The fourth subdivision of section 4 of such Act of June 29, 1906, as amended, is amended to read as follows:
"`Fourth. No alien shall be admitted to citizenship unless (1) immediately preceding the date of his petition the alien has resided continuously within the United States for at least five years and within the county where the petitioner resided at the time of filing his petition for at least six months, (2) he has resided continuously within the United States from the date of his petition up to the time of his admission to citizenship, and (3) during all the periods referred to in this subdivision he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States * * *. At the hearing of the petition, residence in the county where the petitioner resides at the time of filing his petition, and the other qualifications required by this subdivision during such residence, shall be proved by the oral testimony of at least two credible witnesses, citizens of the United States, in addition to the affidavits required by this Act to be included in the petition. If the petitioner has resided in two or more places in such county and for this reason two witnesses can not be procured to testify as to all such residence, it may be proved by the oral testimony of two such witnesses for each such place of residence, in addition to the affidavits required by this Act to be included in the petition. At the hearing, residence within the United States but outside the county, and the other qualifications required by this subdivision during such residence shall be proved either by depositions made before a naturalization examiner or by the oral testimony of at least two such witnesses for each place of residence.
"`If an individual returns to the country of his allegiance and remains therein for a continuous period of more than six months and less than one year during the period immediately preceding the date of filing the petition for citizenship for which continuous residence is required as a condition precedent to admission to citizenship, the continuity of such residence shall be presumed to be broken, but such presumption may be overcome by the presentation of satisfactory evidence that such individual had a reasonable cause for not returning to the United States prior to the expiration of such six months. Absence from the United States for a continuous period of one year or more during the period immediately preceding the date of filing the petition for citizenship for which continuous residence is required as a condition precedent to admission to citizenship shall break the continuity of such residence.'"
By an Act of June 25, 1936, C. 811, 49 Stat. 1925, the second paragraph of the fourth subdivision of Section 4, as amended, was further amended by striking out the period at the end of the paragraph concluding with the word "residence" and inserting a comma, and adding thereto:
"`except that in the case of an alien declarant for citizenship employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Secretary of Labor, or employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States or a subsidiary thereof, no period of residence outside the United States shall break the continuity of residence if (1) prior to the beginning of such period (whether such period begins before or after his departure from the United States) the alien has established to the satisfaction of the Secretary of Labor that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation, and (2) such alien proves to the satisfaction of the court that his absence from the United States for such period has been for such purpose.'
"Sec. 2. No period of residence outside the United States during the five years immediately preceding the enactment of this Act shall be held to have broken the continuity of residence required by the naturalization laws if the alien proves to the satisfaction of the Secretary of Labor and the court that during all such period of absence he has been under employment by, or contract with, the United States, or such American institution of research, or American firm or corporation, described in section 1 hereof, and has been carrying on the activities described in this Act on their behalf." (Italics mine.)
By Joint Resolution of the Congress approved June 29, 1938, 52 Stat. 1247, 8 U.S. C.A. § 382, the second paragraph of the fourth subdivision of Section 4 of the Naturalization Act of June 29, 1906, as amended by Section 1 of the Act of June 25, 1936, was further amended to read, in part, as follows:
"(1) Prior to the beginning of such absence, or prior to the beginning of such employment, contract, or representation on behalf of an American institution of research or an American firm or corporation as aforesaid, such alien has established to the satisfaction of the Secretary of Labor that his absence for such period is to be on behalf of such government or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged solely or principally in the development of such foreign trade and...
