upon a fundamentally just appraisal of conditions created by war, should not be weakened unless strong reasons so require.'
Applying this doctrine, I assume that the statute in this case was tolled unless Congress intended the contrary, to which point I shall now turn.
At the time of the enactment of this statute, Italy had entered the war on the side of Germany, but this country was at peace with her and the rest of the world. To be sure, it was an uneasy peace, and travel conditions between Italy and this country were seriously disrupted. However, the American consulates were open in Italy, and our participation in the war was not generally considered inevitable. It was in this context that the statute in question was enacted, and it would be reasonable to assume that Congress provided the two-year limitation for return to the United States in the light of the then existing conditions and with the expectation, or at least the fervent hope, that they would not worsen. But, as we now unhappily know, they did, and so far as Italy is concerned, all American consulates, to which an American citizen in Italy would turn for a passport, were closed on July 9, 1941, approximately six months from the effective date of the Nationality Act. From then until May 1945, they remained closed so far as northern Italy is concerned, and plaintiff was thereby abruptly deprived of the two-year period which Congress had provided for the retention of citizenship, unless she wished to take the risk of travel in foreign countries in time of war without the protection of an American passport to which she was entitled. In addition, her departure from Italy without permission of the Italian government would have involved a violation of Italian law, at least after our entry into the war. Surely Congress did not expect such hardihood, nor did it intend that the two-year period should be reduced to approximately six months for all practical purposes. That would assume Congress enacted the statute with a war in view, which is an assumption too unreasonable to indulge, for on such assumption the two-year period could have been completely extinguished, instead of being substantially diminished, by the closing of the consulates and the outbreak of war before its effective date, ninety days after enactment. I am therefore brought to the conclusion that it is not contrary to Congressional intent to find that the statute was tolled during the period it was nullified by the public enemy for all practical purposes. To hold otherwise would ascribe to Congress an intention to deprive American citizens of the precious right of citizenship by purportedly giving two years to preserve it for all persons in plaintiff's category wherever they might reside, but actually limiting it in the case of persons situated as plaintiff to approximately six months. Such imputation I cannot make, but instead believe that the statute, in fairness and of necessity unless it be a hollow shell, was tolled as indicated.
It might be argued that she should have gone to the American consulates in southern Italy which were opened somewhat earlier, but that would have involved crossing battle lines, which I likewise cannot believe Congress intended to require in providing the two-year period for return. In addition, it is no exaggeration to assert that during the period while the consulates were closed, and probably for some time prior and subsequent thereto, transportation facilities for return to the United States were limited to the extent of being practically nil. Of course, people did return, but such an undertaking, at least during hostilities, required a high degree of daring and enterprise, as well as financial resources. I am certain Congress did not intend to exact such superlative qualities for the retention of citizenship.
Nor do I believe, as pressed upon me by defendants, that the Drottningholm incident effects any change in the views I have reached. There a total of 193 American citizens left Italy in June 1942 to go to Lisbon for the purpose of proceeding to the United States on the S.S. Drottningholm, but such persons were selected by the Swiss government acting in behalf of the United States, on the basis of humanitarian considerations, without any assistance from any United States agency and only with the consent of the Italian and German governments. By no stretch of the imagination can that be considered a restoration of pre-war conditions or an incident in legislative contemplation, from which it should be inferred that Congress intended that the statute be not tolled in the event of war.
I am aware that Judge Kaufman, of the Southern District of New York, and Judge Kirkland, of this court, for whose opinions I have high regard, have recently expressed the view
that this statute was not tolled, but their decisions were not predicated on such view, and I have not been convinced of its correctness.
Also, the fact that a later Congress did not extend the statute in question, although the opportunity to do so was presented to it, does not persuade me, as contended by defendants, that it was the intention of the earlier Congress to restrict the period of limitation without regard to war.
I am therefore of the opinion that, in respect of persons in plaintiff's situation, the statute was tolled from July 9, 1941, when the American consulates were closed, until May 15, 1945, when they were first reopened in northern Italy, approximately three weeks after its liberation. As stated, the Nationality Act became effective on January 13, 1941, and slightly less than six months had run before the consulates were closed in Italy. Plaintiff returned to this country on September 18, 1946, slightly more than sixteen months from the date the first consulate was reopened in northern Italy. She therefore returned to the United States within the two-year period provided by law for the retention of her citizenship, the statute being tolled for the period stated.
I find that plaintiff is an American citizen, and judgment will be entered accordingly. This opinion will suffice for findings and conclusions unless counsel desire to supplement the foregoing, in which case they may make timely motion to that end.