Zimmer v. Acheson, 6375.

• Decision Date: 30 June 1950
• Docket Number: No. 6375.,6375.
• Citation: 91 F. Supp. 313
• Parties: ZIMMER et al. v. ACHESON, U. S. Secretary of State.
• Court: U.S. District Court — District of Kansas

91 F. Supp. 313

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

No. 6375.

United States District Court, D. Kansas.

June 30, 1950.

A. B. Mitchell and Nicholas F. Lopes, Lawrence, Kan., for plaintiffs.

Lester Luther, United States Attorney, and Philip A. Dergance, and Eugene W. Davis, Assistant United States Attorneys, all of Topeka, Kan., for defendant.

MELLOTT, Chief Judge.

In this proceeding a father and his nine year old daughter, both of whom were born in Germany, seek decree declaring each to be a national and a citizen of the United States of America. The status of the daughter is dependent upon the citizenship of the father at the time of her birth. Necessary findings with reference to her will be made; but, unless otherwise indicated, throughout the findings and discussion, Harry Ward Zimmer will be referred to as the petitioner.

Findings of Fact

1. Petitioner, at the time of the filing of the complaint and at the time of the hearing, was "staying with"¹ his brother in Lawrence, Douglas County, Kansas. His principal occupation has been manufacturing china; but, at the times mentioned above, he was unemployed.

2. Petitioner was born in Coburg, Bavaria (Germany), August 9, 1905. His daughter, Ilona Marga, was born in ____, Germany, July 22, 1940. The wife of petitioner — who died January 13, 1946 at Hof, Bavaria — was a citizen of Germany at the time of her marriage to petitioner on June 15, 1939, and was never naturalized as a citizen of the United States.

3. Petitioner's father, Werner Hermann Zimmer, was born in Gera, Thuringia (Germany), in 1867. He came to the United States during the nineties (sometime after January 1, 1890) and, at a time not disclosed by the evidence, was united in marriage to Nellie M. Lang, who had been born in Wheeling, West Virginia, on July 18, 1867. Werner Hermann Zimmer was naturalized in the Circuit Court of Ohio County, at Wheeling, West Virginia, on October 30, 1896. In 1901 he returned to Germany — probably accompanied by his wife although the record only inferentially so shows — to visit his father, who was then ill.² He accepted employment in Germany, first as the editor of a paper specializing in news for the ceramic industry and later with the Haviland China Co.² He resided in Germany continuously from 1901 until the time of his death in 1933.

4. The mother of petitioner — wife, and later, widow of Werner Hermann Zimmer — made her home in Germany until, and after, the death of her husband. She died in 1947. During the period between 1901 and her death she visited relatives in the United States on several different occasions. In the summer of 1908 she and her husband brought petitioner — who, at that time, was three years of age — to the United States on a visit. The husband returned to Germany earlier; but petitioner and his mother spent several months with her relatives in Wheeling, West Virginia. After this visit, petitioner returned to Germany early in 1909, where he was educated, grew to manhood and resided continuously — possibly one additional visit was made to the United States in 1911 — until the year 1925.

5. In the summer of 1925 petitioner, while a student in the University of Wursburg in Bavaria, made a vacation trip to the United States to visit his relatives. He returned to Germany in the fall, resumed his studies at, and was later graduated from, the university, and continued to reside in Germany for the next eight (8) years, i. e., until 1933.

6. At an undisclosed time petitioner's father had registered with the American (United States) Consul General at Coburg, Germany, as an American (United States) citizen. Some passports — the number is not shown — appear to have been issued to him as a citizen of the United States.

7. In November, 1933, petitioner and his mother made a trip to the United States, visiting relatives in West Virginia and Lawrence, Kansas, and returning to Germany in January, 1934.

8. In the late fall of 1934, petitioner made another trip to the United States, spending several weeks with his brother at Lawrence, Kansas. Some time was also spent in the Wheeling, West Virginia, area where petitioner unsuccessfully sought employment. He returned to Germany in August, 1935. Apparently a passport, in connection with this trip, was obtained from the United States Consul General at Munich, Germany.

9. In September, 1938, petitioner made his final trip, before World War II, to the United States, for the purpose of visiting his relatives. On October 4, 1938, he called in person at the office of the clerk of United States District Court at Wheeling, West Virginia, and applied for a passport to visit Germany on business. It was stated therein that he intended to return to the United States within two (2) years. He took the oath of allegiance to the United States and signed an affidavit swearing that: "* * * if I am issued the Passport for which I am making application and of which this affidavit is a part, I will not, during the validity of the Passport, or during the validity of any renewal or extension thereof, enter any foreign military or naval service without first obtaining the permission of the United States Government."

The passport so obtained was used to return to Germany and apparently could have been used by him to return to the United States at the time, or before, he was drafted into the German Army, as hereinafter related.

10. During February or March of 1940, petitioner received, in Germany, notice to appear before a local German draft board, the notice advising him he "was under martial law." He reported, was examined and subsequently, on June 11, 1940, began active duty in the German Army. He served in the German Army until the United States forces came in and took over in May, 1945, at which time he was a corporal. Captured and held as a war prisoner, he was subsequently released.

11. At the time petitioner was examined for the draft he informed the examiners he was an American citizen. He was advised they regarded him as a German citizen and he was directed "to stay in line."³ He did so and never reported his dilemma to the Consul General of the United States although the United States, at that time and for eighteen months thereafter, was not at war with Germany.

12. The public law of Germany in 1940 required all soldiers of the Wehrmacht to "take an oath upon their entry into the service." The prescribed oath was:

"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."⁴

13. After the cessation of hostilities in Germany, petitioner, on or about April 4, 1947, made application to the Vice-Consul of the United States at Munich, Germany, for passports for himself and daughter as citizens and nationals of the United States. The application was denied on the ground that petitioner had "expatriated himself by taking the oath of allegiance to Germany, a foreign country."

Ultimate Finding and Conclusion

1. Petitioner was a citizen and national of Germany on and prior to the birth of his daughter Ilona Marga Zimmer on July 22, 1940, and she has been a citizen and national of Germany since her birth.

Opinion

Title 8 U.S.C.A. § 903,⁵ a portion of which is set out in the margin, gives this court jurisdiction, petitioner obviously claiming a permanent residence in this district. Whether the Declaratory Judgment Act,⁶ which was in force at the time the complaint was filed and upon which petitioner also relies, is applicable, need not be determined.⁷

The issue before the court, as it has been presented, is predominantly one of fact, although it is perhaps more accurate to say it is one of fact and law. Petitioner undertook to show that he was, and remained, a citizen and national of the United States before, at, and subsequent to the birth of his daughter and that both of them are entitled to all of the rights and privileges appertaining thereto. The findings which have been made, including the ultimate finding and conclusion, are dispositive of the controversy. While it is always difficult, and rarely advisable, to attempt rationalization of an ultimate finding, a brief summarization of the evidence upon which the present one rests may not be amiss.

At the inception of the controversy, petitioner submitted to the Consul General of the United States at Munich, Germany, an affidavit in which he expressed the conclusion he "became a citizen of the United States by birth through * * * his father * * * who was a naturalized citizen of the United States." Apparently the vice-consul was willing to accept that premise; but, as shown in Finding 13, concluded petitioner had expatriated himself by taking the oath of allegiance to Germany, a foreign country. He reached that conclusion in spite of petitioner's statement in the affidavit to the effect that "the oath of allegiance was required of my training group but I was not present and did not take the oath; of this, however, I am unable to produce proof." The vice-consul held that "in the absence of any proof to the contrary it is assumed that he was required to take the oath of allegiance."

The soundness of the conclusion reached by the vice-consul need not be passed upon. At the hearing, petitioner took an entirely different position. He testified that after he had been transported to East Prussia, some 500 miles from his home, and outfitted, the men of his company and another, comprising altogether some 500, were formed into a hollow square and the oath was administered to them; that he was in the rear row; that he neither held up his hand nor repeated the oath in response to the command to do so; and that he never, at any time, took the required oath or any other.

The evidence relied upon taxes the credulity of the court. It is difficult to...