The opinion of the court was delivered by: KAUFMAN
The question in this case is whether the plaintiff, concededly a native-born United States citizen, expatriated himself under Section 2 of the Nationality Act of 1907
when he was drafted into the Italian Army in April 1931, and whether the taking of an oath of allegiance to the Italian Government, if such oath was taken, in April or May of 1931, was sufficient for expatriation.
The plaintiff was born in Herminie, Pennsylvania, on August 17, 1910. When he was approximately three years of age he was taken to Italy by his parents where he remained continuously until he was drafted into the Italian Army in April 1931.
The plaintiff insists that he protested to the Commandant of the post at Turin that he was an American citizen, but that no attention was given to his protest.
The plaintiff says that on or about May 24, 1931, there was a mass swearing-in of conscripted soldiers and that on that day he was in the infirmary in the headquarters hospital and therefore did not take the oath to the Government.
After his release from the Army in December 1931 he remained in a military reserve status, and then he was recalled for further service in 1938 for a period of a few days, and again in 1939 for a period of a few more days.
On these latter occasions no oaths of allegiance were administered.
Plaintiff was then again recalled to duty in February, 1941 and he served until September, 1943. The latter service in the Army, it is conceded by the Government, does not form the basis of their claim that the plaintiff has expatriated himself.
The Government's position may be summarized in the following fashion: They claim that his service in the Italian Army in 1931 was a voluntary act on the part of the plaintiff and that any oath which he did take was purely voluntary on plaintiff's part; that as further proof of the voluntary nature of the act plaintiff did nothing between 1931 and 1940 to openly declare his desire to retain his American citizenship and therefore it follows, the Government says, that he, without doubt, intended to expatriate himself.
In 1940 the plaintiff made application to the American Consul in Florence, Italy, for a United States passport to return to this country. It appears from the exhibits in evidence concerning his application for this passport that the plaintiff stated that he had taken an oath of allegiance to the Italian Government in 1931.
In Exhibit A-1, which is the application for the passport, there was printed matter in which the plaintiff asserted that he never had taken an oath of allegiance to a foreign government. These two statements are obviously inconsistent, and plaintiff explains this by stating that an error was made by the clerk in the Consul's office who was filling out both the affidavit and the application; that the had stated that there had been a mass swearing-in of all of the soldiers in Turin, Italy, in May of 1931, which undoubtedly he says, was mistaken by the clerk as a statement by plaintiff that he had taken part in the swearing-in ceremony.
It appears from both the affidavit concerning the passport and the application that they were completely filled out by typewriter and unquestionably the typewriter was operated by the clerk in the consulate office.
The plaintiff further asserts, and there is nothing in the record to indicate that it is not so, that he could not speak or understand English at the time that Government's Exhibits A and A-1 were filled out and executed.
Again in 1946 plaintiff made an application for a United States passport at the same consulate and generally the same procedure was followed with respect to this application-affidavit as was followed with respect to the application-affidavit of 1940.
In the 1946 affidavit there is a statement to the effect that he did take an oath of allegiance to the Italian Government in 1931, and in the application there is the printed matter indicating that he never had ...