The opinion of the court was delivered by: RAYFIEL
The plaintiff, in his complaint, alleges that he was born on September 21, 1912, at Youngstown, Ohio, and now maintains a residence in the Eastern District of New York; that on May 13, 1946, he applied for a passport; that his application was denied by the Department of State on the ground that he had lost his American citizenship; that he has neither renounced his American citizenship, nor done anything since his birth to expatriate himself, or otherwise justify the contention of the Department of State that he has lost his American citizenship.
The defendant, in his answer, in substance and effect, pleads a general denial, except that he admits the date and place of plaintiff's birth; he sets up two affirmative defenses: (1) That the plaintiff on or about December 1936, while serving in the Roumanian army, expatriated himself by taking an oath of allegiance to the Roumanian government; and (2) renounced his American citizenship by re-entering into the service of the Roumanian army on or about May, 1941, while a national of the Roumanian government.
Plaintiff brings this action under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, and Amendment 14, Section 1, of the Constitution of the United States, and seeks judgment declaring him to be a national of the United States.
The Nationality Act of 1940, Section 503, provides as follows:
'Judicial proceedings for declaration of United States nationality in event of denial of rights and privileges as national * * * . If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, * * * may institute an action * * * (Oct. 14, 1940, c. 876, Title 1, Subchap. V, § 503, 54 Stat. 1171, 8 U.S.C.A. § 903).'
Amendment 14, Section 1 of the United States Constitution provides as follows:
'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. * * * '
Plaintiff was born in the City of Youngstown, Ohio, on September 21, 1912. His parents were nationals of Austria-Hungary. In June, 1921 (when plaintiff was 8 years old), he was taken by his parents to the Province of Transylvania, then part of greater Roumania, but formerly part of Austria-Hungary. In 1929 (when plaintiff was 17 years old), his parents assumed Roumanian citizenship, and, under Roumanian law, plaintiff became a national of Roumania.
Plaintiff was educated in the primary and secondary schools of Roumania, and was graduated from the University of Cluj with the degree of Doctor of Economics with a license in law.
Plaintiff was domiciled in Roumania continuously from 1921 to 1942, except for a visit he made to the United States in 1939, on an assignment as a newspaper representative at the World's Fair. In connection with this visit, plaintiff travelled as a Roumanian citizen on an American visa.
Under the Recruitment Law of Roumania, all Roumanian nationals between the ages of 18 and 21 years were automatically placed upon the military lists subject to call for induction on their twenty-first birthday for military training. All young men of Roumanian nationality were faced with compulsory military service upon approaching their majority, and that obligation was considered by them in the planning of their careers.
In 1931, when plaintiff was about 19 years old and a student, he applied to the American Consul in Bucharest for a passport to come to the United States, on the ground that he was a native-born American citizen. Plaintiff sought the passport in order to provide himself with proof of his American citizenship, so as thereby to avoid Roumanian military service when he attained his majority. He stated in his application that he wished to return to the United States in one and a half years, but made no mention of the actual purpose for which he desired such passport, viz: avoidance of military service.
He was requested by the American Consul to produce his birth certificate and the affidavits of two persons having personal knowledge of his birth. Many months passed before plaintiff was able to supply the supporting documentary evidence of his American birth, but on December 2, 1933, the American Consul rendered a decision denying said application on the ground that plaintiff had lost his American citizenship and became a Roumanian national by the naturalization of his parents in 1929 (Pltff's Ex. 5).
In 1934 the plaintiff, having attained his majority, received a summons from the Roumanian authorities to report for military service. He made no claim of exemption, pursuant to the provisions of the Recruitment Law, because, lacking an American passport, such a claim would have been futile. It is plaintiff's contention that a denial of his claim of exemption would have subjected him to imprisonment. He submitted to induction, but requested and obtained a deferment until October, 1936, on the ground that he wished to complete his education.
In 1935, during the period of his aforesaid deferment, plaintiff made further inquiry of the American Consul concerning a reconsideration of his passport application. He was advised by letter (Pltff's Ex. 3) that he might have a valid claim to American citizenship provided that he had not taken an oath of allegiance to Roumania or served in the Roumanian army. Thereafter, on April 21, 1936, he submitted a second application for a passport wherein he stated, 'I intend to return to the United States to reside permanently within six months, or when I have finished a certain work in connection with my studies.'
At this time plaintiff was over 21 years of age and had the status of a Roumanian military inductee, with a deferment. The plaintiff did not formally protest such military service to the American authorities nor was the subject of his military induction mentioned in either the first or second application for a passport.
In October, 1936, plaintiff was inducted into the army, and, together with his entire class of inductees, took an oath of allegiance to Roumania. He served until October, 1937, and was discharged and placed upon the military reserve lists. By reason of his education, he was given a non-commissioned rank, and, by the mere passage of time, in 1939 was advanced to the rank of a commissioned officer.
Plaintiff claims that he made further efforts to obtain a passport after his discharge from the army, but was then told that he was precluded from ...