Brehm v. Acheson, 90 F. Supp. 662 (S.D. Tex. 1950)

90 F. Supp. 662 (1950)

BREHM
v.
ACHESON, Secretary of State.

Civ. A. No. 4926.

United States District Court S. D. Texas, Houston Division.

April 25, 1950.

Dan Brown, of Houston, Tex., for plaintiff.

Brian S. Odem, U. S. Atty., and Bruce R. Merrill, Asst. U. S. Atty., of Houston, Tex., for defendant.

KENNERLY, Chief Judge.

On June 11, 1948, Dean Acheson, Secretary of State of the United States of America, moving under Section 801(e), Title 8 U.S.C.A., issued his certificate determining and adjudging that plaintiff, Mrs. Elsie Brehm, who was born in the United States of America, had lost and forfeited her nationality or citizenship in the United States by violating such Section.^[1]

This is a suit under Section 903 of such Title by plaintiff, seeking to have such certificate and adjudication set aside and vacated and a decree entered, declaring and adjudging that she, as a native-born national or citizen of the United States, still is a national or citizen of the United States and that she still has all the rights and privileges thereof.

No question of jurisdiction or venue is raised. Defendant Acheson, by his answer, denies in part and admits in part plaintiff's allegation. The sole and only question for decision is whether an election held in *663 Rodach, Germany, in which plaintiff indisputably voted, comes within the meaning of such Section 801(e).

It has been stipulated:

"That the plaintiff, Elsie Brehm nee Elsie Brown was born in St. Louis, Missouri on February 12, 1912.

"That plaintiff married Otto Brehm, a citizen of Germany, at Lake Charles, Louisiana on February 8, 1932 and was issued an American passport on March 25, 1932.

"Plaintiff went to Germany with her husband in 1932.

"The Vice-Consul of the United States located in Munich, Germany wrote plaintiff a letter in 1934 which letter is attached to plaintiff's first amended petition.^[2]

"That plaintiff executed an affidavit on the 11th day of March 1948 to the effect that she had voted in a local election at Rodach, Germany on January 27, 1946 as per exhibit attached to plaintiff's first amended petition.^[3]

"That a certificate of the loss of the nationality of the United States was issued with the approval of the Department of State, Washington, D. C. June 11, 1948. Said certificate being delivered by registered mail to plaintiff under date of July 7, 1948 as per copy of letter and certificate attached to plaintiff's first amended petition.^[4]

*664 "That plaintiff arrived in the United States at Mobile, Alabama on November 2, 1949 and was admitted temporarily for six months upon presentation of certificate of identity issued under Section 503 of the Nationality Act of 1940 [ 8 U.S.C.A. § 903]. That between the year 1932 and November 2, 1949 plaintiff resided in Germany.

"That an actual controversy now exists between plaintiff on one hand and defendant on the other, plaintiff contending that she is a native-born citizen of the United States of America and has never done or performed any act to expatriate herself therefrom; the defendant on the other hand contending that plaintiff expatriated herself by voting in the local election at Rodach, Germany as above noted.

"That Rodach, Germany is at all pertinent times in the American Zone of military occupation in Germany and was at the time of the election under American military occupation and control."

In addition to such Stipulation, etc., the evidence shows that plaintiff at the time of such election was in the employ of the Mayor (Burgermister) of the Town or City of Rodach, Germany, and voted in an election held in such City for a Mayor and three Members of the Community Council of such City. Her testimony before the Court was the same as in her affidavit of August 30, 1949, offered by defendant.^[5]*665 There is some suggestion that plaintiff was under duress, but the facts do not support that view. She was probably influenced to vote by reason of the fact that she was in the employ of the Mayor, but she was not under duress when she voted.

In a publication or book of 241 pages offered and admitted in evidence, styled "Occupation of Germany Policy and Progress" issued by the Department of State of the United States for 1945 and 1946 (Publication 2783, European Series 23),^[6] there are set forth the relations of the United States and Germany at the time such election was held, and it is made clear that the area in which the election was held was not a foreign state or territory within the meaning of Section 801(e).

1. My conclusion is that the election of January 27, 1946, at which plaintiff voted, was held in territory then ruled and governed by the United States and was held by permission and under the direction and by the authority of the United States. And that when plaintiff voted, she was not voting in a political election in a foreign state, nor was she participating in an election or plebiscite to determine the sovereignty over foreign territory within the meaning of Section 801. A helpful case is Etsuko Arikawa v. Acheson, D.C., 83 F. Supp. 473.

Judgment will enter for plaintiff. Let proper decree be prepared and presented.

NOTES

[1] Section 801(e) is as follows:

"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

* * * * * *

"(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory."

[2] Such letter is as follows: "American Consular Service "Munich, Germany, January 19, 1934 "Mrs. Elsie Brown Brehm, "Alexandrinen Strasse 18, "Rodach bei Coburg

"Dear Madam,

"I have your letter of January 18, 1934 with respect to the refusal of the police to grant a visa upon your American passport. There is in cases where an American woman marries a German the conflict between the law of the United States which permits the woman to retain her American citizenship, and the law of Germany, which holds the wife of a German citizen to be a German citizen also. No German official will, therefore, recognize the validity of your American passport or put any endorsement on it, if he knows that you are married to a German. Outside of Germany you could use your American passport but inside Germany, so long as there is no agreement between the two Governments about this conflict in their laws, your American citizenship will not be recognized by the German authorities.

"Some American women in your situation have solved the difficulty by taking out German passports by a right of their position under German law, and have retained their American passports for use outside of Germany. I have no instructions what advice to give you, but the making use of a German passport under the circumstances does not cancel your American citizenship so long as you are not required to swear allegiance to the German Government.

"Very truly yours, "(signature) Charles M. Hathway, jr. "American Consul General."

[3] Such Affidavit is as follows: "Consulate General of the | "United States of America > ss: at Munich, Germany |

"I, Elsie Brehm (nee Brown), born at St. Louis, Missouri, on February 25, 1912, and at present residing at Alexandrinen Strasse 18, Rodach near Coburg, Germany, declare: that I resided in the United States at St. Louis, Missouri, and Houston, Texas, from 1912 until 1932; that I came to Germany with my husband, a German national, in May 1932 and have resided at Rodach near Coburg since that time; that on January 27, 1946, I took part in the Gemeinde elections (for officials of very small communities) at Rodach, voting for the Social Democratic Party.

"(signature) Elsie Brown Brehm "Subscribed and sworn to before me this 11th day of March 1948. "(signature) John M. Kavanaugh "Vice Consul of the United States "(seal) at Munich, Germany."

[4] Such letter and certificate are as follows: "The Foreign Service of the United States of America "American Consulate General "28 Ludwigstrasse, Munich, Germany, July 7, 1948 "Registered Mail "Mrs. Elsie Brehm "18 Alexandrinen-Str., "Rodach near Coburg. "Madam:

"There is enclosed a Certificate of the Loss of the Nationality of the United States as documentary evidence of the fact that you have lost your American citizenship.

"Very truly yours, "For the Consul General "(signature) Lois M. Unger "American Vice Consul.

"Enclosure:

"1) Certificate of the Loss of the Nationality of the United States."

"Certificate of the Loss of the Nationality of the United States

"(This form (No. 348) has been prescribed by the Secretary of State pursuant to Section 501 of the act of October 14, 1940, 54 Stat. 1171 [8 U. S.C.A. § 901].)

"Consulate General of the | "United States of America > ss: at Munich Germany |

"I, John M. Kavanaugh, hereby certify that, to the best of my knowledge and belief, Elsie Brehm (nee Brown), was born at St. Louis, Missouri, on February 25, 1912: that she resides at 18 Alexandrinen Strasse, Rodach near Coburg, Germany: that she last resided in the United States at Houston, Texas; that she left the United States in 1932; that she acquired the nationality of the United States by virtue of birth therein; that she has expatriated herself under the provisions of section 401(e) of chapter IV of the Nationality Act of 1940 [8 U.S.C.A. § 801(e)] by having voted in a political election in Germany, a foreign country; that the evidence of such action consists of her voluntary sworn statement attached hereto admitting having voted in the Gemeinde election (community election for officials of very small communities) at Rodach on January 27, 1946.

"In testimony whereof I have hereunto subscribed my name and affixed my office seal this 12th day of March 1948.

"(signature) John M. Kavanaugh "Vice Consul of the United States at Munich, Germany

"(seal)

"This certificate has been approved by the Department of State, Washington, D.C., in an instruction dated June 11, 1948 to the American Consulate General, Munich, Germany.

"Service No. 13635 "Tariff No. 38 (seal) "No fee prescribed (signature) Lois M. Unger Vice Consul of the United States at Munich, Germany."

[5] Plaintiff's Affidavit is as follows: "Consulate General of the | "United States of America > at Munich, Germany |

"I, Elsie Brehm, nee Brown, born at St. Louis, Missouri, on February 25, 1912, and at present residing at Rodach, near Coburg, Germany, declare: that I voted in an election for mayor and councilmen of the town of Rodach, Germany, held at that place on January 27, 1946; that I voted in this election for minor officials, believing that I was doing my duty as a resident of the community, and that because the candidates in this election had the approval of the Office of Military Government for Bavaria I did not consider that it was really a political election because it was sponsored by American government officials; that at the time of the election I was working in the office of the then Mayor of Rodach as an interpreter, and that I was under the impression that the ballot I marked showed that I, as an American citizen, was well satisfied with the mayor as were the townspeople, and that the ballot was merely a vote of confidence for the man; that I attached no political significance to the election of the Councilmen as they were all closely associated with the mayor; that I was aware of the fact that the candidates on the ballot on which I voted were listed as belonging to different political parties, but that I considered this immaterial because I knew that all these candidates had the approval of Military Government, thus I had no idea that it could be considered a political election; that I had no knowledge of the provisions of the Nationality Act of 1940 at the time of this election, and therefore did not realize that casting a vote in such an election would have any bearing on my American Citizenship; that no consular offices were in existence at that time to give advice to American citizens residing abroad as to their conduct in such matters.

"(sgd) Elsie Brown Brehm "Elsie Brown Brehm "Subscribed and sworn to before me this 30th day of August, 1949. "(sgd) Augustus Ostertag "Augustus Ostertag "Consul of the United States at Munich, Germany."

[6] I quote from such book, Page 43 (italics mine): "The Allied powers, having completely destroyed the Nazi state and assumed for the time sovereign authority in Germany, have been confronted with the necessity of formulating policies for the rebuilding of the entire German state structure. These policies have, to date, been largely concerned with the reactivation of German administrative organs on a local, regional, and zonal basis. More recently attention has been focused on the emergence of state units (Lander) and the problem of a national political structure. The ultimate form of the new German state is as yet undetermined but is the subject of extensive debate and negotiation." etc.

Also from Page 52 (italics mine):

"The United States Zone.

"United States policy has recognized the fact that political reconstruction cannot consist in the reestablishment of preexisting institutions or forms. The dissolution of the Nazi regime has left a political void and even yet few constructive political ideas have emerged from the general chaos. In as much as Germans lack experience in self-government, particularly at levels higher than the local community, a `grass roots' approach has been formulated, designed first to acquaint sound elements among the German population with the conduct of local affairs local administration, trade unions, cooperatives, church organizations, schools, the press, cultural activities and then to build upon the experience thus gained by according responsibility to Germans at higher governmental levels. It is hoped in this way to combat the traditional acceptance by Germans of authority imposed from above by the official hierarchy and to inculcate a sense of personal responsibility for all public acts.

"In the U. S. zone the cultivation of democratic processes has, to date, consisted mainly in the authorization of political parties and legitimate party activities, the holding of popular elections, both local and Land, and the drafting of Land constitutions in accordance with democratic procedures."