Zimmer v. Acheson, 4259.

• Decision Date: 27 September 1951
• Docket Number: No. 4259.,4259.
• Citation: 191 F.2d 209
• Parties: ZIMMER et al. v. ACHESON, Secretary of State.
• Court: U.S. Court of Appeals — Tenth Circuit

191 F.2d 209 (1951)

ZIMMER et al. v. ACHESON, Secretary of State.

No. 4259.

United States Court of Appeals Tenth Circuit.

August 29, 1951.

Rehearing Denied September 27, 1951.

A. B. Mitchell, Topeka, Kan., for appellants.

Lester Luther, U. S. Atty., Eugene W. Davis, Asst. U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., all of Topeka, Kan., for appellee.

Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and RICE, District Judge.

PHILLIPS, Chief Judge.

This is a declaratory judgment action brought by Harry Ward Zimmer and Ilona Zimmer, seeking an adjudication that each of them is a citizen of the United States.

Harry Ward Zimmer was born in Coburg, Bavaria, August 9, 1905. He married Ilse Erdmann June 15, 1939. Ilona, the issue of such marriage, was born in Germany on July 22, 1940. Ilse Erdmann was a citizen of Germany. She never became a citizen of the United States. She died at Hof, Bavaria, January 13, 1946.

Werner Herman Zimmer was born in Gera, Thuringia, in 1867. He came to the United States sometime after January 1, 1890. Thereafter, he was united in marriage to Nellie M. Lang, who was born in Wheeling, West Virginia, on July 18, 1867. Harry Ward Zimmer is one of the issue of that marriage. Werner Herman Zimmer was naturalized in the Circuit Court of Ohio County, West Virginia, on October 30, 1896. In 1901 he returned to Germany to visit his father, who was ill. He accepted employment in Germany as the editor of a publication specializing in news relating to the ceramic industry. Later, he was employed in Germany by the Haviland China Company. He resided in Germany continuously from the time of his return in 1901 until the time of his death in 1933. Nellie Lang Zimmer resided with her husband in Germany until his death, and thereafter she continued to reside in Germany until her death in 1947.

In 1908, Werner Herman Zimmer and Nellie Lang Zimmer, accompanied by Harry Ward Zimmer, came to the United States to visit relatives. Werner Herman Zimmer remained in the United States for a short period only, but Nellie Lang Zimmer and Harry Ward Zimmer remained several months, visiting relatives at Wheeling, West Virginia. They returned to Germany early in 1909. From the time of his return in 1909 until the year 1925 Harry Ward Zimmer resided continuously in Germany, where he grew up and received his education. In the summer of 1925 he visited relatives in the United States. He returned to Germany in the fall of that year and continued his studies at the University of Wurzburg in Bavaria, from which he was later graduated. He resided in Germany continuously from the time of his return in the fall of 1925 until 1933. In November, 1933, Harry Ward Zimmer and Nellie Lang Zimmer came to the United States and visited relatives in West Virginia and Kansas. They returned to Germany in January, 1934. In the fall of 1934, Harry Ward Zimmer again came to the United States and visited relatives at Lawrence, Kansas, and Wheeling, West Virginia. He unsuccessfully sought employment in the United States. He again came to the United States in September, 1938, and returned to Germany in November, 1938.

In either February or March, 1940, Harry Ward Zimmer received notice to report to a German draft board. He reported and was examined and thereafter, on June 11, 1940, began active service in the German army. During the interim between the receipt of the notice to report and the time he reported to the draft board, Harry Ward Zimmer made no effort to secure evidence of his American citizenship. Explanatory of that failure, he testified, "I didn't do anything because I expected that would be cleared up when I reported at the board. * * * I expected when I going there and tell that would be sufficient." But he also testified that he considered himself something of a dual citizen, and that the German draft board had a right to consider him as a German citizen. At the time he was examined by the German draft board he advised the board he was an American citizen. They told him he was a German citizen and directed him to "stay in line." He made no report of the matter to the American consul, although the United States was not then at war with Germany, and he made no effort to prevent his induction. He testified that he was fearful harm would come to him or his wife; that they talked it over and decided that the war would not last very long and that perhaps the best thing to do would be to enter the army. He thus explained his failure to appeal to higher German authority or to the American consul, or to take any affirmative action to prevent his induction.

The public law of Germany in 1940 required all soldiers to take an oath upon entry into the service, reading as follows: "In the name of God I swear this sacred oath: that I will unconditionally obey Adolf Hitler, the Fuhrer of the German Reich and people, and the Commander-in-Chief of the Wehrmacht, and will be willing as a brave soldier to sacrifice my life at any time for this oath."

Harry Ward Zimmer testified that when the oath was administered he did not raise his hand, nor repeat the oath as the other inductees did. He received two promotions while in the German army.

On or about April 4, 1947, Harry Ward Zimmer made an application for a passport for himself and Ilona as citizens or nationals of the United States. The application was denied on the ground that Harry Ward Zimmer had expatriated himself by taking the oath of allegiance to Germany. Harry Ward Zimmer came to the United States on a temporary visa for the purpose of prosecuting the instant action.

The trial court refused to believe the evidence of Harry Ward Zimmer that he did not voluntarily take the oath of allegiance set forth above and concluded that if he had not theretofore lost his American citizenship, he expatriated himself when he took such oath.

Ilona claims citizenship solely through her father. The court further concluded that since Harry Ward Zimmer was not a citizen of the United States on the date of the birth of Ilona, she did not derive American citizenship through her father.

Harry Ward Zimmer and Ilona have appealed from a judgment adjudicating that neither of them is a citizen of the United States.

There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;¹ and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.²

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer, provided: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth...