56106/941
Decided by the Board May 28, 1942. Reconsidered by the Board June 27, 1942. Approved by the Attorney General August 5, 1942.
Citizenship — Expatriation — Section 401 (e), Nationality Act of 1940 — Voting — Meaning of political election.
Voting in the Dominion plebiscite of Canada of April 2, 1942, which was actually an opinion poll conducted under public auspices, the result of which was merely advisory, is not voting in a political election in a foreign state within the meaning of section 401 (e) of the Nationality Act of 1940.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without an immigration visa.
Executive Order 8766 — No passport.
Mr. Joseph Minton, for the Immigration and Naturalization Service.
Mr. Richard P. Lott and Mr. Edward J. Ward, board attorney-examiners.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellant appeared before a board of special inquiry at Montreal, Canada, on the afternoon of April 27, 1942, and applied for admission as a citizen of the United States. The board of special inquiry found that, because, on the morning of that day, she had participated by "voting" in the "Dominion plebiscite," she is to be deemed an alien; then, that she was not in possession of the documents requisite for her admission as an alien; and, therefore, excluded her on the grounds above stated. From this action she appeals.
DISCUSSION: The appellant is an unmarried woman, 24 years old. Her parents were born in the United States, and, at the time of her birth were, and still are, citizens of the United States. Under Section 1993 of the Revised Statutes, she was thus at birth a citizen of the United States. She has "lived" during four periods of 1 or 2 years each in the United States, and, on July 16, 1940, February 15, May 27, and July 30, 1941, was found admissible as a citizen of the United States.
However, she was born in Canada and, as a "British subject by birth," appears to have had the basic qualification of an "ordinary voter" to participate in the "Dominion plebiscite" on April 27, 1942, as stated in section 10 (1) (b) of The Ordinary Voter Plebiscite Regulations as passed by the Governor in Council pursuant to section 9 (which authorizes the making of regulations) of The Dominion Plebiscite Act. (Ordinary Voter Plebiscite Regulations, p. 7.)
The appellant testified that she never "held any political position in Canada"; that she was never "employed by the Canadian Government in any capacity"; and that she has never "taken an oath of allegiance to the Canadian Government." But then, when asked: "Have you ever voted in Canada?" she replied: "This morning." And to the question: "Was that in the plebiscite?" she responded: "Yes," at "the Art Gallery."
The sole ground for the finding by the board of special inquiry that she is to be deemed an alien was that board's opinion that, when the appellant "voted," as she says she did, in the "plebiscite," she brought herself under the proscription of section 401 (e) of the Nationality Act of 1940, which provides:
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:
Section 3 (1) of The Dominion Plebiscite Act, 1942, as passed by the Canadian House of Commons, 4th March, 1942, reads as follows:
This Act shall be limited to the taking of a plebiscite on a question to be set out in the ballot papers in the following words and form:
Vote by making a cross, thus X, after the word "Yes" or after the word "No."
Are you in favour of releasing the government from any obligation arising out of any past commitments restricting the methods of raising men for military service? Yes No
As to just what were the "past commitments" referred to in this ballot paper "question," we have been informed by the Canadian Legation that they were the preelection promises of the present Prime Minister of Canada, which, after he and his associates took office, were embodied in section 3 of the National Resources Mobilization Act, 1940, which restricts the exercise by the Governor in Council of the "special emergency powers" conferred in section 2 as follows:
3. The powers conferred by the next preceding section may not be exercised for the purpose of requiring persons to serve in the military, naval, or air forces outside of Canada and the territorial waters thereof. (Statutes of Canada, 1940, p. 43.)
Our decision as to whether the appellant has lost her birthright of United States citizenship depends upon our answer to the query: Was the performance in which she took part "by making a cross, thus X, after the word `Yes' or after the word `No'," in the Art Gallery in Montreal on the morning of April 27, 1942, "voting in a political election in a foreign state" within the meaning of the clause (1) of section 401 (e) of the Nationality Act of 1940? and, if not, was it "participating in an election or plebiscite to determine the sovereignty over foreign territory" within the meaning of that subsection's clause (2)?
The adjective "political" appears to have been placed before "election" in this clause (1) to exclude from the proscription voting to select officers or decide policies of private or nongovernmental organizations. As an expression under public auspices and relative to a governmental matter, we, therefore, may say that if this "plebiscite" was an election, it was a "political election."
But, was it an election?
We may answer, to a practical certainty if not conclusively, that, in the view of Canada, the foreign state with which we are here concerned, it was not an election.
In United States usage, the term "election" is indiscriminately applied when the question confronting the voters is " What is to be done?" or "Which of two alternative measures is to be adopted?" usually in a form answerable by "Yes" or "No," as "Shall a constitutional convention be called?", as well as when the question is " Who is to be a Representative from this district, or a Senator from this State?"
Indeed, the appearance of the word "election" in the second clause of subsection (e) of section 401 of the Nationality Act of 1940, where it clearly means answering a "What?" question, as well as in the first clause, where it seems to mean answering a "Who?" question, illustrates this double, undistinguishing usage.
So we read of the word's usage in the United States:
The word "election" as used in some constitutional and statutory provisions, includes the determination of submitted questions as well as the election of officers, but, as used in others, it applies to the choice of officers only. (29 C.J.S. 11.)
In the enactments of the House of Commons of Canada, however, there is no double-meaning use of the term, when it appears in, or as synonymous with, the expression "Dominion election." In The Dominion Elections Act, 1938, referred to in The Dominion Plebiscite Act, 1942, the term "election" used alone or as a part of "Dominion election," means "an election of a member or members to serve in the House of Commons of Canada" and not anything else. (Statutes of Canada, 1938, p. 181.)
In the official view of the Canadian House of Commons, therefore, which, in terming the performance in which the appellant participated a "plebiscite," apparently consciously avoiding calling it an "election," it definitely was not an election.
Judicial and legalistic definitions of the term "election" uniformly emphasize as essential the element of determinateness, be the result the selection of an officer or the adoption or rejection of a measure. There are numerous judicial definitions but usually they involve interpretations of the term required for the construing of constitutional or statutory provisions. Thus, in Schieffelin v. Komfort, 163 Ap. Div. 741, 149 N.Y.S. 65, the question was whether voting to decide that a constitutional convention should or should not be called was an "election" within the meaning of article 2, section 4 of the State Constitution requiring registration of voters 10 days before. The majority opinion of Presiding Judge Ingrahan states:
When there are no officers to be elected, the vote of the people not at a general election, upon an abstract question submitted to them for their determination, can hardly be said to be an election within the ordinary meaning of that term. Nobody is elected. Nothing is done to which the word "election" would apply.
Although this statement may go further than the case required since the result of the voting had the effect of putting into operation the machinery for calling a constitutional convention, the language is of worth in the emphasis that it places upon the requirement of decisiveness. Judge Dowling in a dissenting opinion supplies additional definitions of the word "election," and his definitions likewise lay emphasis upon a determination to be accomplished by the election rather than an expression upon a question that is legally moot. Thus:
When the word "election" is used, it is used in the broadest sense, as including any exercise of the franchise by the voters of the State * * *;
* * * Whenever (the term) is used in our statutes it should mean not only the selection of officers by the voters, but as well their action in passing upon all questions submitted to them for determination.
In McKinney v. Barker, 180 Ky. 526, a case deciding that a plurality may elect, the following statement appears:
All the authorities agree that the legal definition of an election as well as that which is usually and ordinarily understood by the term, is a choosing or selection by those having a right to participate of those who shall fill the offices, or of the adoption or rejection of any public measure affecting territory involved.
That an election shall be determinative is implicit in the following definition found in 18 American Jurisprudence, 179:
* * * an election is a choosing or selection, by those having a right to participate, of persons to fill public offices or of public measures which shall be adopted or rejected.
The basic essential of an election in our governmental procedure is, thus, its finality of deeisiveness — until the next election. Of the necessity of acquiescence in that finality, Lincoln said in his First Inaugural:
Whoever rejects it, does, of necessity, fly to anarchy or despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible. So that, rejecting the majority principle, anarchy or despotism, in some form, is all that is left.
And in his message to Congress in Special Session, 1861, he expressed the same finality idea in his statement of what the Civil War meant:
It is now for (the people) to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided, there can be no successful appeal, except to ballots themselves, at succeeding elections.
If, thus, it is true — so true as to be axiomatic — that the essential quality of an election is the conclusiveness or determination of its effect, then it does not appear to be arguable that this so-called "plebiscite" could properly be termed an election at all. For, according to all the available information, its effect was neither to elect anybody to office nor to determine anything. On the contrary, its sole and whole effect appears to have been to emphasize the unchanged fact that determining whether drafted men shall be required to serve outside Canada is squarely and inescapably "up to" the Honorable William Lyon Mackenzie King and his "government," and, whether their decision makes them or breaks them, it is they, and no others, who must decide. Indeed, The Plebiscite Act, itself, did not purport to give its result any legally conclusive or even directive effect.
So Time of May 18, 1942, describes that "plebiscite" as the people's saying to the Prime Minister: "Make up your mind," and the comment of The Nation of May 9, 1942, begins with the statement:
As a result of last week's plebiscite in Canada Prime Minister Mackenzie King is free to ask for legislation imposing conscription for overseas service. Technically he has of course always had that right.
So also, W.H. Chamberlin, writing in the Christian Century of May 13, 1942, summarizes the matter thus:
The Canadian premier is not under any obligation to introduce conscription for overseas service as a result of the plebiscite. He has merely been released, by a majority vote, from his pledge not to resort to it. It still remains a matter of his judgment whether and when and in what form to make use of the blank check which he has received.
As to the exact propriety of naming such an essentially inconclusive expression of "favour" a "plebiscite," we may observe that this naming does not at all accord with the accepted usage "in modern constitutional law" as stated, for example, in Black's Law Dictionary, wherein a "plebiscite" is defined in part as "a vote of the entire people * * * for or against a proposed law or enactment * * * which, if adopted, will work a radical change in the constitution, or which is beyond the powers of the regular legislative body." (3d ed. p. 1368.)
However, even if this polling be deemed to have been a plebiscite, it obviously was not such a plebiscite as that mentioned in section 401 (e) of the Nationality Act of 1940 — a "plebiscite to determine sovereignty over foreign territory."
We conclude that the performance in which the appellant took part in the Art Gallery at Montreal on April 27, 1942, was in actuality a straw vote or opinion poll, esentially similar to those conducted by the so-called American Institute of Public Opinion of Princeton, New Jersey, and other private agencies, with which we are familiar in this country, excepting only that it was conducted under public auspices, and that, by reason of its lack of the essential element of conclusive effect, it was not "a political election." Also, if it could be deemed in any sense an election or plebiscite, it clearly was not "an election or plebiscite to determine sovereignty over foreign territory" within the meaning of section 401 (e) of the Nationality Act of 1940.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the appellant's parents are native citizens of the United States;
(2) That she was born in Canada;
(3) That she "voted" in a "plebiscite" in Canada on April 27, 1942;
(4) That this was an opinion poll conducted under public auspices, the result of which had no determinative effect;
(5) That she presented no documents that would entitle her, if an alien, to enter the United States.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1993 of the Revised Statutes the appellant was a citizen of the United States by birth;
(2) That under section 401 (e) she did not lose her United States nationality by "voting" in the "plebiscite" since this was not a political election nor an election or plebiscite to determine sovereignty over foreign territory;
(3) That as a United States citizen, she is not inadmissible under Executive Order No. 8766 as an alien not in possession of a valid passport;
(4) That under section 13 of the Act of 1924, as a United States citizen, she is not inadmissible as an alien not in possession of a consular visa.
OTHER FACTORS: There are no other factors.
ORDER: It is ordered that the appeal be sustained.
Upon application by the Immigration and Naturalization Service for reconsideration of the Board's order in the above entitled cases.
On June 12, 1942, the Immigration and Naturalization Service moved that the above cases be reopened for the purpose of presenting a motion for reconsideration of our order in those cases.
On June 17, 1942, the Immigration and Naturalization Service represented by Attorney Joseph Minton was heard upon an oral motion to reconsider the decision of the Board in the above-entitled cases which held that the several appellants were not expatriated under section 401 (e) of the Nationality Act of 1940 by voting in the Dominion plebiscite conducted in Canada on April 27, 1942. A written brief dated June 19, 1942, has been submitted by the Acting General Counsel, by Mr. Minton, Assistant.
Section 401 (e) of the Nationality Act provides that a citizen of the United States is expatriated by:
Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory;
It is not argued that the Dominion plebiscite in which the appellants participated was "an election or plebiscite to determine the sovereignty over foreign territory." It is contended that voting in this plebiscite was "voting in a political election in a foreign territory."
The decision of the Board in the foregoing cases was stated at length in our opinion in the case of J---- P---- H---- (56106/941). In substance our decision is that the Dominion plebiscite was not a political election within the meaning of section 401 (e) of the Nationality Act of 1940 because it lacked the essential element of conclusive effect. The brief submitted by the Service attorney urges that the words "political election" are common words and are to be extended to all the objects which in their usual acceptance they describe or denote and are to be taken in their natural, plain, and ordinary signification, as they are familiarly employed in every day speech. It is argued that "election" in the common and popular understanding of the word means "the casting and receiving ballots, counting them, and making the return," and that the narrower meaning that we applied in our opinion in the H---- case violates the rules of statutory construction by applying a "technical or restrictive meaning."
Twelve decisions of appellate courts of various States appear in the brief in addition to the cases and authorities cited in our memorandum. We proceed to an examination of these 12 cases.
Three of these cases we find not in point and any discussion of the term "election" contained in them is irrelevant to a decision of the case at hand. These cases are as follows: Lewis v. Boynton, 25 Colo. 486, was an election contest involving the validity of an election where one candidate appeared as the nominee of a political party, which it was alleged had not nominated him. It was held that the contestant should have acted before the election was held. Wickersham v. Brittan, 93 Calif. 34, raised the question of the right of the defendant to be a director of a State banking corporation. He was appointed by a purported quorum of directors to fill a vacancy. The case distinguishes election from appointment in determining that under the California Code there was no remedy available to the plaintiff. A third case, People ex rel. Nichols v. Board of Canvassers, 129 N.Y. 395, held that an election was invalid where some of the ballots bore different endorsements than the official endorsement.
In two of the cases cited in the brief of the Service attorney, the term "election" was defined as "the casting and receiving ballots, counting them, and making the return." Norman v. Thompson, 96 Tex. 250, involved the question whether a local option election to determine whether or not the sale of intoxicating liquors should be prohibited was invalid for the reason that statutory notice of the election had not been posted. It was held that the failure to post notices was something that occurred prior to the election, defined as the "casting and receiving ballots, counting and making return" and that consequently there was no ground under the applicable Texas Statute for contesting what occurred before election day. In State ex rel. Harris v. Tucker, 54 Ala. 205, the question was whether the time within which a sheriff-elect is required to file his official bond commences to run from the day of the election or the date of certification of election. It was held that the word "election" in the applicable statute referred to the day when the ballots were cast. In both of these cases, it will be observed, the broad definition of "election" had the effect of restricting a statutory provision. The definition in each case was applied to explain the time element involved. These cases can not be deemed authority for the proposition that the term "election" in a statutory sense here involved is to receive its broadest possible interpretation. A third group of cases support the proposition that the term "election" should have a restricted meaning. Coggeshall v. City of Des Moines, 138 Iowa 730, determined that the word "election" used in a provision of a State constitution limiting the right to vote to males refers to an election for the choice of officers alone. The quotation from that case in brief of the Service attorney is from the following sentence appearing at page 740 of the report:
Until comparatively recent times, the word "election," when applied to political subjects, did not denote the choice of a principal, or the decision of a question of government, or the advice to governing bodies by the electors, and only when declared by the instrument itself to be sufficiently comprehensive to cover these matters has it been construed to have this extended meaning.
The case decided that a special election upon the question of whether the city should erect a city hall was not such an election as came within the intendment of the word "election" as used in the State constitution and that therefore women were entitled to vote in that special election. It is interesting to note that the approval of the voters was necessary to the erection of a city hall and the consequent incurring of indebtedness for that purpose, that therefore the vote was of decisive effect. The court regarded this balloting as the participation of the authorized persons in the exercise of legislative power. The opinion, furthermore, declared that its definition of "election" as referring to the choice of officers alone was in harmony with authorities generally. To a similar effect is the decision of the Supreme Court of Colorado in Mayor etc. v. Shattuck, 19 Colo. 104, and the decision of the Supreme Court of Oregon in Oregon-Wisconsin Timber Co. v. Coos Co., 71 Oreg. 462. In these two cases the elections on local governmental matters were conducted in which the electorate was qualified in the one case as property owners and the second case as resident taxpayers. The constitution in each State permitted no such qualification. Again in each case it was held that a term "election" found in a State constitution did not contemplate the special balloting on municipal questions but referred only to the election of officers.
Two of the cases cited in the brief are authority for the proposition that a primary is an election within the meaning of the applicable statute. In State v. Hirsch, 125 Ind. 207, a statute made it a crime to sell liquor "upon the day of any election." In State ex rel. La Follette v. Kohler, 200 Wis. 518, it was held that the Wisconsin Corrupt Practices Act applied to a primary election of a candidate for governor of the State, validly within the State constitution. We would not contend that in the scheme of American Government a primary election is not a political election.
Our decision in the H---- case concedes that the term "political election" extends to a vote upon a question submitted for the determination of the electorate. To this effect is the decision of the Supreme Court of Kentucky in Ginsburg v. Giles, 254 Ky. 720. Section 148 of the Constitution of Kentucky prohibited more than one election annually. In this case there had been submitted to the voters of a city the question as to whether a loan agreement between the city and an agency of the United States Government should go into effect. The opinion of the court contained the following statement:
The (city) commissioners under this statute, by its language, are not vested with the power to use their discretion to adopt or reject the ordinance, after the result of the election is so ascertained and declared. The substance of the question embraced in the ordinance to the voters of the city is not submitted for an advisory purpose. It is a referendum measure in every sense of the meaning.
Finding that the word "election" used in section 148 of the Kentucky Constitution includes the decision of the question submitted to the voters as well as the choice of officers, the court held that the municipal vote upon the loan agreement was an election within the prohibition of section 148. To a similar effect is State v. Board of Canvassers, 78 S.C. 461, in which it was held that the use of separate ballot boxes for the receipt of votes for and against in a local option election violated the secrecy required under the constitution for elections.
From the cases in point cited in the brief of the Service attorney, we find that the term "election" construed as of the time of the adoption of the constitutions in Iowa, Colorado, and Oregon referred only to elections of officials. We observe from the Ginsburg and other of the cases cited by the Service attorney that the device of submitting for determination to the electorate a question of governmental function has become a not uncommon practice. Where, however, as in the Kentucky and South Carolina cases above cited, a question has been submitted to the voters, the voting thereon was decisive. We are referred to no case in which it has been held that a vote upon a governmental question is termed an "election" without being decisive. We see that the term "election" within the last 75 years meant only an election of an official, but that with the extended use of what is called the "referendum" the term has been expanded to include a vote to determine a governmental question.
In statutory construction we readily agree that common words should be given their ordinary signification. There is no rule of construction that requires that words be given their broadest possible sense. It is "plain and ordinary signification" which we seek in this case. We conclude that a vote upon a governmental question is an election only when the vote has decisive effect, and it is not an election when the result leaves the question moot. Our definition of the term "election" is thus restrictive, as in common acceptance it always has been restrictive, although broader now than 75 years ago. This, however, is not a "technical" meaning.
The Service attorney argues that the words "political election" were intended to be given a broad application as evidenced by the explanatory comment of the President's Committee which submitted the proposed Nationality Act to Congress. This explanatory comment reads in part as follows: "Taking an active part in the political affairs of a foreign state by voting in a political election therein," which is considered as involving attachment and allegiance to the foreign state, inconsistent with continued allegiance to the United States. The Dominion Plebiscite Act described the voters entitled to vote therein, and, as we have pointed out in our opinion in the H---- case, the result was not to have any decisive effect. In the most absolute despotism, the despot could submit to a defined portion of the population a question upon which they might vote with no more effect than is found under the Dominion Plebiscite Act. Voting in such an affair is not an exercise of franchise. It is not "taking an active part in the political affairs of a foreign state." The Dominion plebiscite implicitly recognized the difference between a polling of the passive state of mind of a part of the population and permitting that part of the population to participate actively in governmental affairs. The appellants in these cases have not exercised the right of franchise, expressed their sovereign power, and have not taken an active part in the political affairs of a foreign state. P---- E---- M----, the appellant in case 56106/978, said before the board of special inquiry: "I guess I took it (the plebiscite) as something altogether different from a Federal election." For the reasons stated in our opinion in the H---- case and as hereinabove stated we find that the Dominican plebiscite was "altogether different" from an election as defined by section 401 (e) of the Nationality Act of 1940.
ORDER: It is ordered that the motion for reconsideration of our order herein is denied.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.