The opinion of the court was delivered by: BAILEY
The petitioner, Winston Guest, was born in England in 1906. His mother was born in Pennsylvania and married his father, an Englishman, in England in 1905, where all there resided until 1919, when petitioner's parents separated by mutual consent, and with an agreement that the mother should have the custody of petitioner. The mother and child them came to this country, and a record known as an immigration record or manifest was made under the direction of the United States Commissioner of Immigration at Ellis Island, in which petitioner was described as an alien. Both mother and son have continued to reside in the United States ever since. After the passage of the Cable Act in 1922 (8 U.S.C.A. §§ 9, 10, 367-370), which provided a short form for the resumption of citizenship by a woman who had theretofore lost her United States citizenship, by reason of her marriage to an alien, Mrs. Guest made an application to a United States District Court in New York for resumption of United States citizenship, and in 1923 that court issued an order conferring such citizenship upon her.
In 1934, after some question had arisen as to the citizenship of petitioner, he sought a ruling by the respondent, MacCormack, as Commissioner of Immigration and Naturalization, to the effect that he became a citizen of the United States at birth, that the record of his entry at the Port of New York as an alien be corrected, and a further ruling that he was not entitled to and did not need a certificate of derivative citizenship as provided by section 399c (a) of title 8 of the U.S.C.A. for the reason that he was born a citizen of the United States. These requests were denied under the direction of the respondents upon the ground that on the facts and the applicable law the petitioner was not an American citizen.
Later on February 4, 1936, petitioner, saving and reserving his claim to his being a natural-born citizen, applied for a certificate of derivative naturalization, which was denied upon the same grounds upon which the denials of his former application were based.
Thereupon petitioner filed his petition in this court seeking the issuance of a declaratory judgment and a writ of mandamus to show that he is a natural-born citizen of the United States and to have the record of his entry changed accordingly, and in the alternative to show that he is a naturalized citizen by virtue of his mother's resumption of citizenship and to have a certificate of derivative citizenship issued to him.
The respondents answered and petitioner filed a general traverse. To the latter the respondents demurred, and this demurrer, taken in connection with the stipulation of counsel, raises the question of whether, under the facts, the substance of which is stated above, the petitioner is entitled to the relief prayed.
Petitioner claims that he is a natural-born citizen of the United States by reason of the fact that his mother was born in this country and did not lose her citizenship by marriage with an Englishman. I think that this question is disposed of by the Convention of May 13, 1870, between the United States and Great Britain which provided: "Citizens of the United States of America who have become, or shall become, and are naturalized according to law within the British deminious as British subjects, shall, subject to the provisions of Article II., be held by the United States to be in all respects and for all purposes British subjects, and shall be treated as such by the United States" (16 Stat. 775, art. 1); and by the British statute of 1870 which provided: "A married woman shall be deemed a subject of the State of which her husband is for the time being a subject."
Petitioner contends that the word "naturalized" in the treaty does not refer to naturalization by marriage, but that to constitute naturalization there must be some positive act of renunciation of the former allegiance or some pledge of the new. I do not think that this can be maintained. A minor may become a citizen of this country merely by the naturalization of his parent, and marriage is a voluntary act which may cause the loss of citizenship when the statute so provides. Mackenzie v. Hare, 239 U.S. 299, 36 S. Ct. 106, 60 L. Ed. 297, Ann.Cas. 1916E, 645.
The construction of this treaty by Congress is also against the petitioner's contention. On May 18, 1898, some years before the marriage of petitioner's mother, Congress passed a joint resolution in which it recited that "Whereas Nellie Grant Sartoris * * * married * * * Algeron Charles Frederick Sartoris, a subject of the Queen of Great Britian, and emigrated to Great Britian, becoming thereby, under the laws of Great Britian, a naturalized British subject, to be recognized as such by the United States, according to the provisions of the Convention Relative to Naturalization between the United States and Great Britian of the thirteenth of May, eighteen hundred and seventy; and" readmitted her to citizenship. This shows the construction that Congress put upon the law as it existed before Mrs. Guest's marriage, and would fully apply in her case. I am of the opinion therefore that the petitioner did not become a citizen of the United States at birth by reason of the citizenship of his mother at that time.
Petitioner also relies upon section 2172 of the Revised Statutes (8 U.S.C.A. § 7) which provides inter alia: "The children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof."
This provision is taken from the Act of 1802 (2 Stat. 155, § 4), which, as to this provision, has always been held not to be prospective in its operation and to apply only to those parents who were in 1802, or had been, citizens. Petitioner contends however that inasmuch as this statute was brought forward into the Revised Statutes enacted in 1874, this provision by its reenactment took effect as of 1874, and therefore applied to petitioner's mother born in 1872. But section 1993 of the same Revised Statutes (8 U.S.C.A. § 6 and note) provided: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."
The latter section would exclude petitioner, whose father never resided in this country.
But I think that it is immaterial, for the purposes of the instant suit, whether petitioner became an American citizen at his birth by reason of his mother's citizenship or later by means of the repatriation of his mother. I do not think that the authorities sustain his claim that he is a natural-born citizen within the meaning of the provisions of the Constitution, either of section 1, clause 4, of article 2, that "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," or of the Fourteenth Amendment, that "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."
In the case of United States v. Wong Kim Ark, 169 U.S. 649, at page 688, 18 S. Ct. 456, 472, 42 L. Ed. 890, it was said: "This sentence of the fourteenth amendment is declaratory of existing rights, and affirmative of existing law, as to each of the qualifications therein expressed, -- 'born in the United States,' 'naturalized in the United States,' and 'subject to the jurisdiction thereof' -- in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents; and has left that ...