
    ALPHONSE GAY v. THE UNITED STATES.
    
    [No. 33756.
    Decided June 12, 1922.]
    
      On the Proofs.
    
    
      Navy pay; retired muehmist; expatriation. — •Where a retired machinist, a naturalized citizen of the United States, residing in his native land by permission of the Navy Department, presents satisfactory evidence as required by section 2 of the act of March 2, 1907, 84 Stat. 1228, to the proper consular officer of the United States that he intends to return to and reside in the United States, such evidence rebuts the presumption of expatriation resulting from a residence of two years in his native country.
    
      Same. — The purpose of the act of March 2, 1907, supra, is to authorize the State Department to refuse to extend the protection of the Government to naturalized citizens, who, having remained in foreign country two or five years continuously, fail to satisfy the officers of the State Department that they intend to return to and reside in the United States, and is not intended to authorize the Navy Department, or any of its officers, to declare any officer has expatriated himself, to dismiss him from the Navy, or to deprive him of his retired pay.
    
      
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King <& King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert E. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. The. plaintiff, Alphonse Gay, after serving 13 years 6 months and 10 days as an enlisted man in the Navy, was, on the 6th day of July, 1899, appointed by warrant of the President of the United States a warrant machinist in the Navy, the title of which office has been changed by subsequent legislation to machinist, and remained on the active list in the performance of duty as such until November 23, 1908, when he was retired from active service on account of an incapacity, to wit, deafness, resulting from an incident of the service. In 1907 he received a medal granted under the act of March 3, 1901, in recognition of his service on board the U. S. S. Cincinnati at the Battle of Matanzas, Cuba, April 27, 1898.
    II. The plaintiff was born in Switzerland on May 19, 1856. He was admitted to citizenship of the United States by the United States District Court for the Eastern District of New York August 4, 1897.
    He has always borne true faith and allegiance to the United States and has done no act inconsistent with his allegiance nor with his status as an officer of the United States Navy.
    III. After his retirement from active service in the United States Navy he was on August 9, 1909, granted permission to leave the limits of the United States for a period of one year from September 16, 1909. August 17, 1910, he was authorized to remain abroad for one year from September 16, 1910. September 12, 1911, he was authorized to remain abroad for a period of one year from September 17, 1911. August 30,1912, he was authorized to remain abroad beyond the limits of the United States indefinitely.
    In accordance with the permission so given him he has been residing at several places in Switzerland, and has kept the Bureau of Navigation informed of his address by letters written annually or of tener, as required by articles 704, 705, 706, Naval Instructions, 1913. He made one or more affidavits of continued American citizenship before the American cousul at Geneva.
    He was registered as an American citizen at the American consulate at Geneva. A registration certificate was furnished to the plaintiff and showed that he was at that time living at Clos des Cretes, Clarens, Switzerland. On November 25, 1912, the plaintiff called at the IT. S. consulate at Geneva and requested a renewal of his registration certificate. The vice consul informed him that since he had lived over two years in Switzerland, the country of his birth, he would have to sign an affidavit to overcome the presumption of expatriation. The plaintiff duly signed such affidavit, and on November 26, 1912, he called again at the consulate and asked that the affidavit be not sent to the Department of State.
    January 11,1916, he was officially notified by the Director of Naval Intelligence, Navy Department, by a letter addressed to him in Switzerland that he had been slated for duty in connection with that office in time of war and was requested in case of return to the United States and to Washington to call at the Office of Naval Intelligence but “ should you remain abroad indefinitely, and oppoi’tunity offer, it is requested that you confer with the naval attache at Paris.”
    He received this letter through the naval attache at Paris, who transmitted the same to him January 25, 1916, with a request to acknowledge receipt.
    January 28, 1916, plaintiff acknowledged receipt to said naval attache.
    February 24, 1916, the Chief of the Bureau of Navigation of the Navy Department addressed him a copy of General Instructions issued to naval officers abroad directing them to notify the accredited U. S. naval attache of their presence, address, and probable length of stay, etc., or if in countries or colonies to which no naval attache is accredited, to make similar report to the nearest U. S. naval attache practicable.
    March 15, 1916, in accordance with this order claimant notified the naval attaché at Paris, giving particulars in regard to his residence, and expressing himself as ready and willing to leave Switzerland whenever recalled to the United States by the Navy Department.
    March 17,1916, the naval attaché acknowledged receipt of his letter of March 15, 1916, stating:
    “2. In case you are in the vicinity of Paris, I would be greatly obliged if you would call at the embassy in order to receive certain confidential information which I have been directed by the Navy Department to furnish you.
    “3. There is no immediate necessity of your coming to Paris at present.”
    June 19, 1916, and again July 25, 1916, he was notified by the pay officer of the New York Navy Yard, who had been carrying his accounts and paying him his monthly retired pay, that said pay officer had been directed by the Navy Department to make no further payments to him.
    September 1, 1916, he wrote the Chief of the Bureau of Navigation, Navy Department, Washington, D. C., reciting this information from the pay officer and respectfully requesting to be informed of the reason for that action, and stating that he was ready to answer at any time for his actions. No response seems ever to have been made to this letter.
    November 12, 1917, he wrote the Bureau of Navigation stating that he was able to perform sea or shore duty; that his health was in very good condition, and that the deafness for which he was retired was improving; that he could speak French fluently; and that a call to any duty to which the department would see fit to assign him would be gladly received.
    It was officially stated by the Director of Naval Intelligence, December 14, 1917, “ There is at present no duty in this office to which the above subject might be assigned.”
    His name appears continuously in the officially published annual “ Register of the Commissioned and Warrant Officers of the Navy and Marine Corps ” down to and including that of January 1,1917, where he is carried as a machinist on the retired list of the Navy, and under the column “ Present residence or duty,” he is listed, “Abroad.”
    
      It does not appear by what authority his name was omitted from the register.
    IV. He has been paid as a machinist on the retired list of the Navy of maximum length of service at the rate of $1,681.50 a year from the time of his retirement to and including April 30, 1916, since which date he has received no pay. If claimant is entitled to pay as a machinist on the retired list from May 1, 1916, to June 12, 1922, there would accrue to him $10,302.52.
    
      
       Appealed.
    
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover the retired pay of a machinist in the Navy, the plaintiff having been retired as a machinist on November 23, 1908. He was paid his retired pay from the date of his retirement up to May 1, 1916, but since that date his retired pay has been withheld, and he alleges that there is now due him the sum of $10,018.90. He was notified on June 19 and July 25, 1916, by the pay officer of the New York Navy Yard, that that officer had been directed by the Navy Department to make no further payments to him. On September 1, 1916, he wrote to the Chief of the Bureau of Navigation, Navy Department, Washington, D. C., requesting to be informed why his pay had been stopped. To this letter no response was made, and on May 24, 1917, he brought this suit in this court.

The effect of this action of the Navy Department was to remove the plaintiff from his position as a retired officer of the Navy and to deprive him of his rights as such and of the emoluments guaranteed him as such retired officer without giving him an opportunity to be heard. The reasons given for this action by the Navy Department are that the plaintiff under the act of March 2, 1907, should be officially regarded as having expatriated himself; and that having so expatriated himself the plaintiff had abandoned his office as a machinist in the Navy in view of the requirement of the law and regulations that officers of the Navy must in all cases be citizens of the United States. It will be observed that these reasons and conclusions were never communicated to the plaintiff, and he was given no opportunity to make answer to them.

The provision of the statute under which the Navy Department held that the plaintiff had expatriated himself is as follows:

“ Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign State in conformity with its laws, or when he had taken an oath of allegiance to any foreign State.

“ When any naturalized citizen shall have resided for two years in the foreign State from which he came, or for five years in any other foreign State, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when his country is at war. (Act of Mar. 2, 1907, 34 Stat. 1228.)

The act is entitled “An act in reference to the expatriation of citizens and their protection abroad.” The purpose of the act is to relieve the Government of the obligation to protect citizens residing abroad after the limit of two or five years, when their l’esidence there is not shown to be of such a character as to warrant the presumption that they intend to return and reside in the United States. After the time limit has expired it is presumed that the citizen does not intend to return, and it is necessary, in order that he may have the protection of this Government, for him to show affirmatively that it is his bona fide intention to return to the United States to live. The essential thing under the act is the intention to return to and reside in the United States. 28 Op. Atty. Gen. 504, 508, 509. The provisions of the act are penal and are not to be extended to include any person not within its purview.

From the facts proved it appears that the plaintiff does not come within the provisions of the act. He was an officer of the United States Navy who went abroad with the permission of the Navy Department; that permission was repeatedly renewed, and while living in Switzerland under this permission of the department his pay as such officer is taken from him without any reason therefor being given to him. It is true that, acting upon the opinion of a subordinate officer of the department that he had expatriated himself, his pay was stopped. But all the facts in the case were apparently not submitted to the departmet, and even if they had been we are of opinion that it was not in the province of the Navy Department, or of any of its officers, to pass upon the rights of the plaintiff and to declare that he had 'expatriated himself, and thereby to dismiss him from the Navy, and take from him his retired pay to which he was entitled under the law, and which he had earned by long-active service in the Navy. The act of March 2, 1907 was only intended to authorize the State Department to refuse to extend its protection to citizens who, having remained in a foreign country two or five years continuously, failed to satisfy the officers of the State Department that they intended to return to and reside in the United States. The act does not affect any other rights.

In the case at bar the plaintiff, when his attention was called to the fact that he had resided in Switzerland, the country of his birth, for more than two years continuously, promptly made the affidavit required of him by the consular officer. He complied with the law, although he might well have insisted that he did not come under its provisions, and having complied with it, and rebutted the presumption raised by the statute, he can not now be held to have expatriated himself. He presented satisfactory evidence to a consular officer of the United States of his intention to return to and live in the United States.

The fact that the affidavit was not sent to the Department of State has nothing to do with its force and effect, for, as far as this record shows, it was not necessary to its validity that it should be forwarded to the department. Having once made the affidavit it was not necessary under the provisions of the act to make one every two years.

The facts show that the plaintiff intended to return to the United States to live; and moreover, it is shown that the plaintiff when war was declared promptly tendered his services to his Government.

The court is of opinion that the plaintiff has not expatriated himself, and is still a citizen of the United States. He is therefore entitled to all his rights as such, and is entitled to his pay as a retired officer of the Navy from May 1, 1916, up to the present time.

The defendant’s attorney has asked us to make certain findings based upon affidavits made by certain officers of the Government. These affidavits are merely ex-parte statements and are not competent evidence. The persons who made the affidavits could have been examined by the defendant. The fact that they were not leaves the court to infer that the evidence which they might have given would not have stood the test of scrutiny. At all events there is no reason to depart from a long and well-established rule.

For the reasons above given the court is of opinion that the plaintiff is entitled to recover the sum of $10,302.52. It is so ordered.

Geaham, Judge; Dowhey, Judge; Booth, Judge; and Campbell. Chief Justice, concur.  