The opinion of the court was delivered by: SMITH
This is a civil action under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903.
The plaintiff seeks a judicial declaration that she is a citizen and national of the United States. The defendant urges the dismissal of the action on the ground that the plaintiff voluntarily expatriated herself by her failure 'to elect between dual citizenship' when she attained majority, and thereafter continued to reside in a foreign state. The essential facts are not disputed.
The plaintiff's parents were native born citizens of the United States who resided in this country previous to her birth. Her father, Charles M. Torrance, was born in Brookfield, Missouri, on June 26, 1876, and resided in this country until early in 1900, when he emigrated to Germany; her mother, Bertha E. Torrance, nee Regnier, was born in Atchison, Kansas, on September 28, 1881, and resided in this country until 1890, or a short time thereafter, when she emigrated to Germany with her parents. The plaintiff's parents were married in Germany and thereafter resided there, her father until his death in 1917 and her mother until the present time.
The plaintiff was born in Frankfort on Main, Germany, on December 14, 1910, at which time both parents were still citizens of the United States. She resided with her parents in Frankfort on Main until the death of her father in 1917, and thereafter with her mother in Heidelberg, Germany, until June 1933, when the plaintiff emigrated to London, England. She established a residence in London and did not return to Germany except on occasional visits to her mother. It is admitted that on these visits she traveled on a German passport issued some years before, but which was renewed by her in 1931 and again in 1936. We note, however, that this passport was issued in 1926 on the application of the plaintiff's mother.
When the plaintiff emigrated to England in 1933 she sought employment, and, as required by law, registered as a citizen and national of Germany. However, in the following year she made inquiry regarding the status of her citizenship at the office of the American Consular Service and was there erroneously informed that, having acquired derivative citizenship in Germany by reason of the naturalization of her mother, she was no longer a citizen of the United States. There is no record of this inquiry, but the testimony of the plaintiff is indirectly corroborated by the official action of the Department of State on later applications.
The plaintiff took no further action until January of 1939, when she, intending to travel on her German passport, applied for a visitor's visa at the office of the American Consular Service at London. The consular officer, entertaining some doubt as to the status of the plaintiff's citizenship, denied the application but granted her a provisional visa which permitted her entry into the United States for the purpose of seeking a determination of her status. The plaintiff entered this country in February of the same year, and shortly thereafter consulted an attorney.
The plaintiff executed a formal passport application, which was filed in the Department of State on March 14, 1939. The Department of State, in a letter dated April 5, 1939, advised the plaintiff as follows: 'This Department has consistently held that when an American parent acquires the nationality of a foreign state in conformity with its laws and his or her minor children also acquire the nationality of such foreign country under its laws, the parent and children must be held to have lost American citizenship under the provisions of the first paragraph of Section 2 of the Act of March 2, 1907 (U.S.Code, Title 8, Section 17). Accordingly, in view of your naturalization as a German citizen through your mother's acquisition of such citizenship, you must be regarded as having lost your American citizenship and are not entitled to receive a passport of this Government.' (Exhibits P-13 and D-1).
The plaintiff again made an application for a United States passport on October 11, 1939, approximately four months after the Supreme Court decided the case of Perkins v. Elg, infra. This application, which was filed in the office of the American Consular Service at London, was denied by the Department of State. The denial of the application was apparently predicated on concomitant grounds: first, the failure of the plaintiff to elect United States citizenship, and second, her failure ...