In the Matter of F

Board of Immigration AppealsAug 19, 1946
2 I&N Dec. 427 (B.I.A. 1946)

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56156/450

Decided by Board January 24, 1946 Ruling by Attorney General August 19, 1946

Citizenship — Expatriation — Voting in foreign political election — Section 401 (e) of the Nationality Act of 1940.

A local "option" election in Canada, on the question of whether the voter was in favor of the sale of beer and wine under the provisions of Liquor Control Act (Canada), is a "political" election within the contemplation of section 401 (e) of the Nationality Act of 1940, so that, if a United States citizen voted in such foreign "political" election on January 21, 1942, expatriation under the provisions of section 401 (e) of the above act would result.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924 — No immigration visa.

Executive Order No. 8766 — No passport.

BEFORE THE BOARD


Discussion: The appellant, a native of the United States, applied for admission to the United States as an American citizen at the port of Detroit, Mich., on October 22, 1943. Her claim to citizenship was rejected by a Board of Special Inquiry and since she was not in possession of any documents required of aliens to enter the United States, she was excluded by the Board of Special Inquiry. She appealed from the excluding decision and on December 11, 1943, this Board ordered the case reopened for the purpose of adducing additional evidence bearing on the appellant's alleged expatriation. On February 23, 1944, this Board again concluded that the record was insufficient in spite of the reopened hearing held on January 20, 1944, and, accordingly, ordered the case again reopened. Another hearing was held on April 1, 1944, at the conclusion of which the Board of Special Inquiry, after finding the subject had lost her United States citizenship under sections 401 (a) and 401 (e) of the Nationality Act of 1940, excluded her on the above designated grounds. Her appeal is again before us.

The appellant was born in Bridgeport, Conn., on October 28, 1917, and by reason of her birth in this country she acquired American citizenship ( United States v. Wong Kim Ark, 169 U.S. 649 (1898)). On December 10, 1925, she was taken by her parents to Canada where, on November 14, 1931, her father was naturalized a Canadian citizen. Since the appellant's name was endorsed on her father's naturalization certificate, and since she was then a minor and a permanent resident of Canada, it appears that under Canadian law she then acquired that country's nationality. The appellant has made her home in Canada since December 1925.

The appellant's involuntary acquisition of Canadian citizenship in 1931 did not serve to divest her of her status as a national of the United States ( Perkins v. Elg, 301 U.S. 325 (1939)). After attaining her majority she had a right to elect her American nationality and by that election (provided she had not already elected Canadian citizenship), be regarded under our laws as retaining only her American citizenship ( Matter of G----, 56127/839 (decided by the Attorney General July 3, 1943); Matter of S----, 56127/518 (decided by the Attorney General June 19, 1943). Such an election of American Nationality, if prior to the Nationality Act of 1940, would have operated to remove the appellant from the purview of the provisions contained in the second proviso of section 401 (a) of the Nationality Act and she would not have had to come to the United States for permanent residence on or before January 13, 1943 ( Matter of G----, supra).

So far as this record shows, and at least until the effective date of the Nationality Act, January 13, 1941, the appellant performed no act which would have expatriated her under then existing law. Indeed, her conduct during that period could not have resulted in her loss of citizenship had the Nationality Act then been in effect. She did nothing which would in any way be construed as manifesting an intention to be considered a Canadian or as an election of Canadian citizenship, mere residence in Canada not being deemed such an election ( Matter of S----, supra). On the contrary, her actions until January 13, 1941 were not only consistent with her status as an American citizen, but were an affirmative expression of her desire to be considered a citizen of this country. Though the appellant has never had a permanent residence in the United States, she has come here as a visitor on many occasions. She has spent vacations in Bridegport, Conn., and has visited week ends in Cleveland and Detroit. On all of these visits, and they occurred both before and after attaining majority, as well as before and after January 13, 1941, she was admitted as an American citizen upon claiming that status and upon presentation of her birth certificate. She has, therefore, consistently claimed American citizenship and has always been admitted as an American citizen on her claim to that status.

Some weight must be given to these prior admissions as a citizen ( Wong Chow Chin v. Cahill, 79 F. (2d) 854 (C.C.A. 9th, 1935); Wong Kam Chong v. United States, 111 F. (2d) 707 (C.C.A. 9th, 1940)).

An election prior to the Nationality Act of 1940, and under the principles of the Elg case, does not necessarily require a formal prescribed procedure. Its existence must be determined from all the circumstances of a person's conduct and behavior. This Board has held that a claim of citizenship by one seeking temporary admission to the United States and an admission for that purpose as a citizen may constitute an election of American citizenship ( Matter of Y----, 56158/623 (July 8, 1944)). Here the appellant, as stated above, both prior to and after attaining majority and prior to January 13, 1941, was consistently admitted to this country as a United States citizen in order to visit her friends and relatives. This recognized claim of citizenship, when viewed in the light of her conduct while living in Canada, is more than sufficient to support a finding that prior to the Nationality Act of 1940 the appellant elected to retain her American Nationality.

Although the election of nationality in the Elg case was manifested by return to the United States for permanent residence after reaching majority, it is not limited to that method.
On September 14, 1885, the Acting Secretary of State advised the Minister of Switzerland in the case of Robert Emden that election "requires no formal act, but may be inferred from the conduct of the party from whom the election is required" (For. Rel. 1885, p. 811; III Moore, International Law Digest, 545, 546). We have consistently followed this rule ( Matter of G----, supra; Matter of K----, 56158/275 (June 1, 1944); Matter of Y----, 56158/623 (July 8, 1944)). This view is likewise shared by the Immigration and Naturalization Service (memorandum of General Counsel, dated August 17, 1945, file No. 6012775 at p. 3).

This conclusion is in harmony with the Nationality Manual of the Immigration and Naturalization Service which recites that an election of United States nationality is effected, inter alia, by "obtaining temporary admission as a citizen of the United States in 1940, upon presentation of a birth certificate, by a person who always regarded himself as a citizen of the United States" (p. 14027).

Thus, under the Attorney General's decision in the G---- case, upon the effective date of the Nationality Act of 1940 the appellant was not a dual national within the scope of the second proviso of section 401 (a). She was therefore not required to come to the United States for permanent residence on or before January 13, 1943, in order to be deemed to have retained her American citizenship acquired at birth. Except for the claim that appellant's participation in a local option election in Kingsville, Ontario, Canada, with regard to the sale of beer and wine was inconsistent with her assertion of citizenship, the appellant, since January 13, 1941, has abided by her election of American nationality. She has never held public office in Canada, has never taken an oath of allegiance to a foreign country, has never participated in a provincial or Dominion election, and has always claimed and been admitted as an American citizen when seeking temporary admission to this country. In fact, her American citizenship has never been questioned until her present application for admission on October 22, 1943.

The question presented is, therefore, whether the subject expatriated herself by voting in the Kingsville wet or dry election on January 21, 1942. A letter from the town clerk and treasurer of Kingsville was admitted in evidence stating that the election was conducted under the Liquor Control Act of Ontario and that the exact question before the electors was:

The appellant testified as follows:


Q. Have you ever voted in a political election in Canada?

A. I voted for "wet" or "dry."
Q. When was that?
A. Two years ago.
Q. Was that a local election?
A. Yes; at Kingsville.
Q. Have you ever voted in a political election?
A. No; I haven't.

Q. Have you ever voted in any other election in Canada?

A. No; I haven't, just for that "wet" or "dry."

------------------------------------------------ | Are you in favor of the sale of | YES | | beer and wine under the provisions |-------| | of the Liquor Control Act? | NO | ------------------------------------------------

A letter from the town clerk and treasurer of Kingsville dated June 17, 1944, advises that: "The voting on this question is not considered a political affair."

The Assistant Legal Adviser of the State Department is of the opinion that such election is not a political election under the nationality laws.

Letter of August 4, 1945, quoted infra.

The pertinent provision of section 401 of the Nationality Act of 1940 provides that United States citizenship acquired either by birth or naturalization shall be lost by:

(e) Voting in a political election in a foreign state or participation in an election or plebiscite to determine the sovereignty over foreign territory. ( 8 U.S.C. 801).

Prior to the effective date of the Nationality Act voting in a foreign election did not constitute an act of expatriation ( Matter of V----, AR 6002601 (January 20, 1945)).

In the case of dual nationals we have held that voting in a foreign election would constitute an election of that foreign nationality only where it was indicative of a choice or preference for the foreign nationality. Matter of G----, 56172/567 (Jan. 25, 1945).

The Nationality Act for the first time established the rule that voting in a foreign political election constituted a ground for expatriation. A determination as to whether section 401 (e) of the Nationality Act is applicable to the instant case requires us to ascertain the meaning of the expression "political election."

As stated by Justice Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918): "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and context according to the circumstances and the time in which it is used." These words, as many other words in the English language, have many shades of meaning, made so by the literati of our English language, and other languages. In determining the exact meaning to be given to them it is necessary to ascertain whether they are used in a broad or all-embracing sense, or whether they have a narrower context.

The word "political" may conceivably have several different meanings. It is sometimes defined as "relating to or concerned in public policy and the management of the affairs of the state or nation." It frequently connotes a more restrictive meaning, namely, that which is done pursuant to political affiliation.

Bouvier Law Dictionary (1914); Cyclopedic Law Dictionary, 3d ed. (1940); Black's Law Dictionary, 3d ed. (1933); Oxford Universal English Dictionary (1937); Funk and Wagnalls New Standard Dictionary (1937); Webster's New International Dictionary, 2d ed. (1940); Century Dictionary and Cyclopedia (1937). Whether this meaning embraces local affairs as distinguished from those of the state or nation, we do not now decide. It may be noted, however, that the explanatory comments of the committee report accompanying the President's message of June 13, 1938, with reference to section 401 (e) refer twice to participation in the "political affairs of a foreign state" as the conduct proscribed by the section.

The National Encyclopedia (1944) defining politics states that it broadly refers to political science or the process by which the government is managed, but that it is frequently narrowly defined to refer to "the act of party management." For other definitions in harmony therewith see Webster's New International Dictionary, 2d ed. (1940); 49 C.J. 1073. See also communication of A.A. Berle, Jr., to Claude G. Bowers dated October 9, 1941, State Department file 825/1358, infra.

We are of the opinion that Congress did not intend to employ the word "political" in its broad sense in section 401 (e) of the Nationality Act, and that the adoption of the restricted meaning is consistent with the object sought to be achieved by the legislation. The ambiguity of the word political was recognized during the hearings which led to the enactment of the Nationality Act.

Henry Butler testified before the House Subcommittee on Immigration on May 9, 1940, with reference to H.R. 6127, as follows: "Let us say, for instance, they have voted in a political election. I do not know what that means. And, I defy anyone to tell just what a person could or could not do, as a result of which they would lose their citizenship. It is very difficult to say what would be a political election, or for a person to know what the political election means.


Richard W. Flournoy, Assistant Legal Adviser of the Department of State, who testified at these hearings advised us on August 4, 1945, as follows:

In my opinion a local option election of the kind mentioned does not come within the statutory provisions in question and is not to be regarded as a "`political election." I have discussed the matter with other members of the office, and this appears to represent the concensus of opinion.

This view is in conformity with a prior ruling of the Department of State. On October 9, 1941 A.A. Berle, Jr., advised Ambassador Claude G. Bowers as follows (file 825.00/1358):

With reference to the question of the application of subsection (e) of section 401 to cases of American nationals who vote in municipal elections in Chile, you are informed that the test as to whether voting at such an election results in the loss of American nationality depends upon whether the election is properly to be denominated a political election, that is to say, whether political issues are involved or the campaign is being waged along political lines between candidates of opposing political parties.

It should be noted that the local option election involved herein was not considered a political issue nor was any campaign waged along political lines.

Our own rulings likewise recognize that the restricted meaning of the word political should be adopted. In Matter of C----, 56175/489 (June 16, 1945), we recognized this principle. It was there decided that voting in a nonpartisan election for a school trustee in Canada was not an act of expatriation. Yet voting in such an election or in a nonpartisan election with respect to sidewalks, highways, sewerage, or hospital improvements would constitute voting in a "political" election if the term "political" were employed in the broad or generic sense. All such elections deal with the conduct of government and with methods by which the affairs of a state or its subdivisions are managed. Nevertheless, it is clear that Congress did not intend to cause the forfeiture of citizenship by reason of voting upon matters of such character. Its purpose was to provide for expatriation where the citizen's conduct indicated a "political attachment and practical allegiance to a foreign state * * * inconsistent with continued allegiance to the United States." Voting in nonpartisan elections of the character presented herein do not indicate political attachment to a foreign state nor are they inconsistent with American citizenship. It is therefore our opinion that a finding that the subject herein is a citizen of the United States is in conformity with the intent of Congress and is consistent with the objectives of section 401 (e) of the Nationality Act.

Compare testimony at Nationality Hearings, supra, note 9.

A.A. Berle, Jr., advised that such elections would not constitute an act of expatriation. Supra, note 8.

The comments of the President's Committee which drafted 401 (e) of the Nationality Act are as follows:


`The meaning of this subsection also seems clear. It is applicable to any case of an American who votes in a political election in a foreign state, whether or not he is a national thereof. Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of that foreign state. In any event it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and, at the same time, retain his American nationality. The two facts would seem to be inconsistent with each other." [Italics supplied.]

In this connection the anomalous position of the municipality in Canada should be considered. Carl P. Bethune, City Solicitor of Halifax, Nova Scotia, advised us on June 27, 1945, as follows:


"The point raised in your letter is most interesting and I must say comes as somewhat of a shock to me. I have never viewed a municipality in the light of being a branch of any of the larger subdivisions of the government of the country insofar as the same may be affected by national political influences. I have always felt that any person who pays taxes in a municipality is, or should be, regarded as a citizen of that municipality for the purposes of the municipality and entitled to have some say in the election of the council or other body which spends the money which he pays in taxes. I still think this is a reasonable viewpoint. * * *

"I have never heard of a municipal election which was run on a party system or which had any direct bearing on Federal issues, or as a matter of fact, even on provincial issues. That, I understand, is not the case in the United States where the Federal party system comes all the way down from the Federal elections, through State elections and right down through the piece to municipalities. I do not think our situation is comparable, and therefore I would answer your question `Is the average municipal election a political affair?' in the negative.

"Another conclusion from the foregoing would be that the average municipality in Canada is a local subdivision rather than a political subdivision of either the province or the Dominion."

A similar view was expressed by the secretary-treasurer of the Rural Municipality of Barrier Valley, Saskatchewan, in letters of January 12, 1945, and March 20, 1945, to the Department in Matter of B----, 56172/863, where the disallowance of a claim to American citizenship by a Board of Special Inquiry was the subject of vigorous protest.

This view is further reinforced by the ambiguity of the terminology employed. As was stated by the Supreme Court in Perkins v. Elg, 307 U.S. 325, 337 (1939), "rights of citizenship are not destroyed by an ambiguity." Expatriation laws are penal in nature. They effect a forfeiture of citizenship and therefore must be strictly construed. And, a strict construction requires the adoption of the view we take here.

In re Wildberger, 214 Fed. 508, 509 (E.D. Pa. 1914); Matter of Y----, Judge Masse, D.C. Hawaii (Mar. 16, 1929), 55579/857.

Congress has on other occasions legislated with respect to political elections. It has done so in the Federal Corrupt Practices Act (act of February 28, 1925, as amended, 2 U.S.C. 241-256) and in the so-called Hatch Act (act of August 2, 1939, as amended, 18 U.S.C. 61-61u). The elections that Congress was concerned about in the enactment of those statutes were those involving partisan and party activities, organizations, and candidates. It was in that type of election that the individual Congressman participated in gaining his office and we believe it was that type that Congress had in mind when it enacted section 401 (e).

Words of a statute are to be construed in their ordinary and common meaning. In the sense used by the ordinary man and woman "political election" refers to that type of election which is the subject of partisan activities and with which the usual give and take of political campaigns as conducted in this country is associated. The ordinary man and women, we believe, would never consider a local non-partisan election with respect to an issue not the subject of active party campaigning, such as those mentioned above, as political. It is in that sense that Congress used the word "political."

To say that Congress had not intended that the word "political" was to be construed in the manner indicated would mean that its use of that word in section 401 (e) was a purposeless gesture. The word "political" does not appear in the last clause of section 401 (e) which provides for the expatriation of those Americans "participating in an election or plebiscite to determine the sovereignty over foreign territory." Yet such an election is as political in the generic sense of the word adopted by the minority as is the one in which the appellant participated. The only reasonable explanation of why the word was omitted there and inserted in the first clause is that Congress intended to limit the application of the firs clause to elections which are political in the sense understood by the ordinary man and woman. The construction adopted by the minority of the Board can only mean that Congress had no purpose in thus modifying the first clause. We cannot ascribe such a purpose or lack of purpose to the Congress.

In view of the conclusion we have reached that the appellant did not vote in a political matter it is unnecessary for us to determine whether she participated in an "election" as that term is used in the Nationality Act of 1940. However, in passing and without resting our decision on the point, we desire to call attention to the dual meanings of the word "election." The weight of authority in the United States, interpreting the word, as used in state constitutions and in state statutes, favors the view that the term "election" contemplates solely those elections at which officers are selected.

"* * * the weight of authority apparently favors the view that the phrase all as used in a constitutional provision contemplates merely those at which public officers are elected" (18 Amer. Jur. 180 (1938)).
See also Anno. 14 L.R.A. (N.S.) 850 (1908). In Mayor v. Shattuck, 19 Colo. 104, 34 Pac. 947 (1893), the court stated in holding that the question of the dissolution of a town and its annexation to the city of Denver was not an election: "In our opinion, the word `elections' thus used, does not have its general or comprehensive signification, including all acts of voting choice, or selection, without limitation, but is used in a more restricted political sense, as elections of public officers." Coggleshall v. City of Des Moines, 138 Iowa 730 (1908), held that an election applied only to the choice of officers and therefore a vote as to whether or not the city should erect a city hall was not an election. In McClure v. Wright, 112 Ark. 342 (1914), it was held that proceedings to obtain a license to sell liquor in towns and cities under the local option statutes was not an election. In Thorton v. Territory, 17 Pac. 896 (1888), the court held that a vote to repeal the existing law and prohibit the sale of liquor was not an election, stating: "To make the word `election' mean the choice of a state law is to invent for a word a new meaning which it never previously had." In Kenny v. McDonough, 315 Mass. 689 (1944), it was held that a vote to place the office of the city auditor within the classified service and to continue the incumbent in office after passing the qualifying examination was not an election. In Oregon-Wisconsin Timber Holding Company v. Coos County, 71 Ore. 462, 142 Pac. 575 (1914), it was held that voting a special tax for a district road improvement was not an election. The Court stated: "In our judgment, the word `election' as used in the Constitution should not be given a general or comprehensive signification, including all acts of voting, choice or selection, but rather in a restricted sense, as election of public officers." And in Schieffelin v. Komfort, 163 App. Div. 741, 149 N.Y. Supp. 65 (1914), affirmed 212 N.Y. 520 (1914), it was held that voting to decide whether a constitutional convention should be held was not an election. The Appellate Division stated: "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." To the same effect, see: Wickersham v. Brittan, 93 Cal. 34 (1892); Bliss v. Hamilton, 171 Cal. 123 (1915); Pitcher v. Dervage, 56 Okla. 583 (1916).

A minority of jurisdictions have held that "election" not only includes the choice of public officers but that the word is sufficiently broad to include elections to determine any special question which may be submitted to the electors.

Broadhurst v. Hawkins, 188 Ga. 316 (1939); Brownell v. Council of Stryker, 95 Ohio St. 101 (1916); Hardy v. Beaver City, 125 P. 679 (Utah, 1912). And see: Morgan v. Goode, 151 Ky. 284 (1912); Vulcan Lass Co. v. State, 194 Wis. 636 (1928).

The usual and accepted meaning of the word "election" as defined in various dictionaries, both legal and nonlegal is one which confines the word to the election of public officers.

The English Law Dictionary (1899) defines election as: "The choice of a representative, officer, etc." Wharton, Law Lexicon, 14th ed. (1938), defines election as: "The act of selecting one or more from a greater number for an office." Cyclopedia Law Dictionary, 3d ed. (1940), defines election as "The selection of one man from among more to discharge certain duties in a state, corporation, or society." Black's Law Dictionary, 3d ed. (1933), defines election as: "The selection of one person from a specified class to discharge certain duties in a state, corporation, or society."

Webster's New International Dictionary, 2d ed. (1940), defines election as: The "Act of choosing by vote a person to fill an office, or to membership in a society, as by ballot, uplifted hands, or viva voce; as the election of a president or mayor; hence, the regular exercise of its function by an electorate." The New International Encyclopedia (1930) defines election as: "The choice of public officers by the vote of those who are entitled to exercise the elective franchise." The Oxford Universal English Dictionary (1937) defines election as: "The action of choosing for an office, dignity, or position; usually by vote spec. The choice by popular vote of members of a representative assembly, e.g., The House of Commons." See also Encyclopedia Americana (1944).

Even those authorities which give an extended meaning to the word "election" to include a vote upon a popular issue, designate the choice of officials as the primary meaning of the word. We therefore believe that the most usual acceptation of the term "election" is that which signifies the choice which people make collectively of a person to fill an office. We also believe that a narrow construction of the statute which should be adopted in the interpretation of laws providing for loss of citizenship would likewise lead to the adoption of this restricted meaning of the word election. Finally, we take cognizance of the fact that if the term "elections" comprehended plebiscites it would have been sufficient for Congress to have stated that voting in political elections resulted in expatriation without adding, "or elections or plebiscites to determine the sovereignty over foreign territory." In accordance with the well recognized principle of statutory construction a sentence should be so construed that effect is given to all its provisions and so that no part of it will be inoperative or superfluous. We must assume and conclude that Congress intended to distinguish between the word "election" and the word "plebiscite." The two words have well accepted meanings which do not overlap. We believe that those well accepted meanings were the meanings intended to be utilized by Congress. Accordingly, we are of the opinion that the word "election" is restricted to a vote for public office and that the word "plebiscite" covers a popular vote upon an issue presented to the electors. The Nationality Act restricts the type of plebiscite or the type of popular vote which may result in expatriation to those which determine the sovereignty over a foreign territory. In the instant case the town of Kingsville had a referendum or plebiscite on whether it was to remain wet or dry. We are of the opinion that it was not an "election," political or otherwise, as the term is employed in section 401 (e) of the Nationality Act.

Funk and Wagnall's New Standard Dictionary of the English Language (1937); Century Dictionary and Cyclopedia (1911).

See infra, note 15.

In modern politics the direct vote of the whole electors of a state to decide a question of public importance, whether the public expression be with or without binding force, is generally regarded as a plebiscite. The term plebiscite may have a shade of meaning different from that of referendum but the terms are regarded as synonymous (Oxford Universal English Dictionary (1937); Webster's New International Dictionary, 2d ed. (1940); Funk and Wagnall's New Standard Dictionary of the English Language (1937); Black's Law Dictionary, 3d ed. (1933); 49 C.J. 886; Encyclopedia Britannica (1936)).

3 Sutherland Statutory Construction, 339.

We, therefore, conclude, in harmony with the spirit of the Nationality Act, the views of the Department of State and those of the Canadian authorities, that the subject did not vote in a political election and we find that the subject is a citizen of the United States.

Findings of Fact: Upon the basis of the evidence, it is found:

(1) That the appellant was born in the United States on October 28, 1917, and seeks admission as a citizen of this country;

(2) That the appellant's father was naturalized a Canadian citizen on November 14, 1931; that the appellant's name appeared on his certificate and the appellant thereby acquired Canadian nationality;

(3) That the appellant has claimed American citizenship and has been admitted as a citizen of the United States on numerous occasions for visits prior to and subsequent to the attainment of her majority and prior to and subsequent to January 13, 1941;

(4) That the appellant has resided in Canada since 1925 and she has not returned to the United States for permanent residence;

(5) That the appellant voted at Kingsville, Ontario, on January 21, 1942, to determine whether beer and wine should be sold in that town under the provisions of the Liquor Control Act of Ontario;

(6) That the appellant has not voted on any other occasion in foreign territory, held any foreign office, or taken an oath of allegiance to any foreign government.
Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the fourteenth amendment to the Constitution of the United States, the appellant was born a citizen of the United States;

(2) That the appellant elected to retain her American citizenship prior to January 13, 1941;

(3) That the appellant was not required to return to the United States for permanent residence under the provisions of 401 (a) of the Nationality Act of 1940;

(4) That under section 401 (e) of the Nationality Act of 1940, the appellant has not voted in a foreign political election and has not become expatriated;

(5) That the appellant is admissible as a citizen of the United States.

* * * * * * *

But to get down to a less definite situation, what about the person who has a Rhodes scholarship who is attending a British university and votes in some school district. Is he voting in a political election? I do not know.

ORDER OF BOARD

Upon the opinion, findings of fact, and conclusions of law adopted by the majority of the Board, it is

Ordered that the appellant be admitted as a citizen of the United States.

It is further ordered, That, pursuant to section 90.12, title 8, Code of Federal Regulations, this case be certified to the Attorney General for review of the Board's decision in view of the importance of the question presented and on the ground that a dissent has been recorded.


Miss F---- was born in Bridgeport, Conn., in 1917. Her father was naturalized in Canada in 1931 and her name was included in her father's naturalization certificate. Since she was a minor this alone did not divest her of United States citizenship ( Perkins v. Elg, 301 U.S. 325). She had a right after reaching majority to elect to retain her American citizenship. A majority of the Board of Immigration Appeals finds that she exercised this right.

After the Nationality Act became effective Miss F---- voted in Canada on the following question:

--------------------------------------------- | Are you in favour of the sale of | YES | | beer and wine under the provisions |------| | of the Liquor Control Act? | NO | --------------------------------------------

This raises the question whether she lost her citizenship by reason of a provision in the Nationality Act that citizenship shall be lost by "voting in a political election in a foreign state * * *" ( 8 U.S.C. 801). The majority of the Board holds that she did not lose her citizenship because this was not a "political election."

In Matter of H---- et al., 56016/941, August 5, 1942, the Acting Attorney General approved a finding by the Board of Immigration Appeals that citizenship was not lost by voting in Canada on the following question:

------------------------------------------------------------------- | Are you in favour of releasing the Government from any | YES | | obligation arising out of any past commitments restricting |-----| | the methods of raising men for military service? | NO | -------------------------------------------------------------------

The conclusion was placed upon the ground that the vote lacked the essential decisive quality of an election. That is not true in this case.

As indicated, the members of the Board have differed as to whether a local-option election is a political election within the contemplation of the statute. The Commissioner of Immigration and Naturalization is of the opinion that a local option election is a political election. The Legal Adviser of the Department of State takes the contrary view. The legislative history of the statute, although relied upon by the respective proponents of each view, affords little assistance.

I am constrained to hold that Miss F---- lost her citizenship by participation in the local option election, assuming that she had not previously lost it by failure to elect American citizenship prior to the time the Naturalization Act of 1940 became effective. In this view of the matter a decision on the latter question is not necessary. Whether a local option election is a political election within the mean-of the statute is a question that cannot be regarded as settled until the courts have had occasion to pass upon it, and I feel that a judicial decision thereon is desirable. So far as Miss F---- is concerned, if she does not wish to resort to the courts she may apply for admission to the United States as a nonquota immigrant and thereafter seek restoration of her citizenship under the naturalization statutes.

For the foregoing reasons the order of the Board of Immigration Appeals that Miss F---- be admitted as a citizen of the United States is reversed.


While I agree with the decision of the majority that the appellant is an American citizen, I wish to add a few remarks with respect to the issues raised by the dissenting opinion.

The appellant claimed American citizenship prior to the effective date of the Nationality Act. She was consistently admitted as an American citizen. This constituted not only an election of American citizenship but also a formal recognition of such claim to and election of citizenship by the immigration officials. We have held that admissions for temporary visits as an American citizen constitute such election even where the visits are for one-day periods ( Matter of S----, 56107/901 (November 24, 1942), and see Matter of Y----, 56158/623 (renumbered A-5553101) (July 8, 1944)). (Cited with approval by the General Counsel, Immigration and Naturalization Service memorandum of August 17, 1945, and in Nationality Manual of the Immigration Service, p. 14027, notes 15 and 20b.)

The dissent asserts that this case is taken out of the Y---- doctrine by reason of the subject's subsequent conduct in registering under the Canadian Registration Regulations of 1940 and in voting in the Kingsville wet or dry election on January 21, 1942. But the difficulty with that approach, as I see it, is that it fails to take into consideration the fact that an election under the Elg doctrine must take place prior to the effective date of the Nationality Act of 1940. Whatever occurs subsequent to that time is governed by the express provisions of the Nationality Act and not by the Elg doctrine. Accordingly, the appellant's participation in the wet or dry election in Kingsville in January 1942, about a year subsequent to the effective date of the Nationality Act, is of no value in determining whether she elected American nationality under the theory of the Elg case. Participation in that election is only important in determining whether she lost her citizenship under the provisions of section 401 (e) of the Nationality Act of 1940, an issue which will be discussed below.

With respect to registering under what is called the Canadian Registration Regulations of 1940, as evidencing an act of election, there are four reasons why I believe such registration was not an election of Canadian nationality.

(1) The law under which the appellant registered applied to all inhabitants of Canada, male and female, and whether or not they were citizens or noncitizens of that country.

(2) The appellant in registering acted under compulsion of Canadian law. (See the Acting Attorney General's decision in Matter of S----, 56127/518 (June 19, 1943), where it was held that registering in the Canadian draft and attempting to enlist in the Canadian Army was not an act of election.)

(3) According to the record evidence, the Canadian official who registered the appellant listed her as a Canadian, not because she expressed a preference for that nationality, but because that official found that by reason of her father's naturalization in Canada she had acquired that country's nationality. At the time of that registration the appellant was not presented with any alternative.

(4) The appellant had long prior to her registration under the Canadian Registration Regulations of 1940 already elected American nationality. Having done so she was bound by that election unless subsequent thereto she performed some act which would have brought about her expatriation under then existing statutes.

The serious issue presented by the record is whether the appellant's participation in the local beer and wine option election resulted in her loss of citizenship under section 401 (e) of the Nationality Act.

The problem as I see it is whether Congress, by employing the words "political election" in section 401 (e), intended to include within their scope all types of local municipal elections irrespective of how free from controversy or partisanship from a political point of view the subject matter of those elections might have been. And in ascertaining the congressional intent in this regard, I do not believe that judicial opinions dealing with the construction of state constitutions, state statutes or municipal ordinances on issues which have no relationship to the Nationality Act or the issues before us can be of any great assistance in resolving our problem. Those opinions are evidence only of the intent of the legislative body involved in the particular case; they are not in my judgment evidence of what Congress intended by its use of the words "political election" in the Nationality Act. As I analyze the problem, we must initially concede that there are no controlling judicial authorities, and that the issue to be decided is one of first impression.

In deciding this case there is no need for us to set forth any all-inclusive definition of what Congress had in mind in using the word "political election." Such an all-inclusive definition, desirable as it might be, would best be left to the gradual process of evolution as individual cases are considered and decided in the future. All that has to be determined here is whether the local option election held in Kingsville, Ontario, on January 21, 1942, was within the reach of the words "political election" as used by Congress in section 401 (e) of the Nationality Act.

According to the record evidence the election in question was entirely nonpolitical in nature and was not conducted on a political basis. Such elections are today and were at the time of the enactment of the Nationality Act outside of the arena of politics. The election held in Kingsville affected only a small segment of the population of a subdivision of a foreign state with respect to a non-partisan matter relating to the health, welfare and safety of the inhabitants of the community. Participation in that election was in no way indicative of allegiance to the British Crown nor was it an act necessarily inconsistent with American citizenship. At best it indicated an interest on the part of the appellant in the type of community in which she desired to live.

To say that Congress intended that participation in the Kingsville election was to result in expatriation would mean that other nonpartisan and nonpolitical elections with respect to like matters affecting the local health, welfare and safety fell within the provisions of section 401 (e). For example, it would mean that American citizens living in Canada would be enjoined, on peril of losing their citizenship, from expressing their views, by way of an election, as to local zoning laws, sewerage systems, public school construction, road-building projects and other like nonpolitical matters. I cannot believe that Congress intended that such action by American citizens should result in a forfeiture of American citizenship, and that an election of that type was to be deemed to be a "political election in a foreign state" within the meaning of section 401 (e) of the Nationality Act. This view is in conformity with the view expressed by the State Department. It conforms to the view expressed by the municipal officials in Canada, and it is supported by the position taken by this Board in Matter of C----, 56175/489 (June 16, 1945), where we held that voting for a school trustee was not participation in a political election.


Discussion: The appellant, a native of the United States, was excluded in October 1943 by a Board of Special Inquiry on the theory that she lost her American nationality under two provisions of the Nationality Act of 1940, sections 401 (a) and 401 (e). The Central Office of the Immigration and Naturalization Service, in its forwarding memorandum, based its conclusion of expatriation only on section 401 (a). We shall discuss the other provision first, however.

The appellant was born in Bridgeport, Conn., on October 28, 1917, of Hungarian parents. When she was 4 years old her family returned to Hungary, living there until 1925 when they emigrated to Canada. In 1931 her father was naturalized a Canadian citizen and appellant, his minor child permanently residing in Canada, was included on his naturalization certificate. The appellant has been living in Canada from 1925 until her present application for admission. In January 1942, she voted in Kingsville, Ontario, in a local option election.

The election in which the appellant voted was conducted under the Liquor Control Act of Ontario, and the question was whether beer and wine should be sold. To vote on such an issue the statute requires that persons be qualified to be entered on the voters' list and to vote at elections of the assembly in the municipality (sec. 69 (2), Liquor Control Act of Ontario; p. 7). Thus, the voters must be, inter alia, British subjects, and resident and domiciled in Canada (sec. 119, ch. 7 and sec. 18, ch. 8, Revised Statutes of Ontario (1937); see also pp. 12, 13 RH). In general the provisions of the Election Act and the Voters' List Act regarding such matters as the preparation of lists, time and manner of holding the poll, forms to be used and oaths to be administered apply to voting under the Liquor Control Act.

Section 401 provides that a national of the United States 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; * * *.

Our colleagues conclude that the voting in which the appellant participated was not a political election within the purview of section 401 (e). We believe that it was. It is contended that this voting was not "political," that "political" as used in the statute has a restricted meaning contemplating "that which is done pursuant to political affiliation" (see majority opinion p. 431). At the outset, it may be observed that this is an unenlightening definition since the word "political" is defined by using the phrase "political affiliation." Political then would mean that which is done pursuant to "some-kind-of-affiliation," but this is left to inference. We object to the definition on other grounds besides its vagueness, however.

The majority opinion concedes that the word "political" is "sometimes" defined more broadly than the definition proposed. This is a decided understatement. Examination of dictionaries and encyclopedias reveals that the word "political" is defined primarily in its broad or generic sense. In Webster's New International Dictionary, 2d Ed., Unabridged (1940), the primary definition of "political" is:

Of or pertaining to polity, or politics, or the control of government, referring in the widest application to the judicial, executive, and legislative branches; of or pertaining to, or incidental to the exercise of the functions vested in those charged with the conduct of government; relating to the management of the affairs of state; as, political theories.

In Funk and Wagnall's New Standard Dictionary of the English Language (1937), the primary definition of "political" is:

Pertaining to public policy; concerned in the administration of government; belonging to the enactment and administration of laws; as political management; a political system.

In Bouvier's Law Dictionary (Raleigh's 3d Ed., 1914) and the Cyclopedic Law Dictionary (1940) the following is the only definition of "political":

Pertaining to policy, or the administration of the government. Political rights are those which may be exercised in the formation and administration of the government; they are distinguished from civil rights which a man enjoys as regards other individuals, and not in relation to the government. A political corporation is one which has principally for its object the administration of the government, or to which the powers of government, or a part of such powers has been delegated.

Cyclopedic Law Dictionary adds here: "`rights' being synonymous with `power'".

In the Cyclopedia of Law and Procedure (1909) (31 Cyc. 907) the only definition of "political" is:

Pertaining to policy or the administration of government.

We are told by the majority that they have taken the meaning of "political" given it by the "ordinary man and woman." How they discovered what the ordinary man and woman think on this subject, we are at a loss to understand. It must be concluded, however, that they define the word differently than do the dictionaries and encyclopedias.

The word "political" has been defined in court decisions also to include that which pertains to government rather than that which merely pertains to partisan groups. In Commonwealth v. McCarthy, 281 Mass. 253, 183 N.E. 495 (1932), the court stated:

The word "political" in its ordinary meaning is not limited to something pertaining merely to the actual management of a government by individuals for the time holding office thereunder. The essential significance of the word includes anything pertaining to the establishment of a form of government.

The court in the case of In re Kemp, 16 Wis. 382 (1863), stated that the word "political" when used "in its higher and true sense" means "that which pertains to the government of a nation." The court added, "In this sense it includes the entire system of its laws, constitutional and statutory." Indeed, an election like that with which we are concerned, has been held to be "political." In Adamson v. Connally, 112 S.W. (2d) 287 (Tex.Civ. Apps., 1937), which involved a local option election on the question whether intoxicating liquor should be sold in the county, the court stated, "An election contest of the character authorized by said statutes is a political proceeding." In State ex rel. Green et al. v. The City of Cleveland, 33 N.E. (2d) 35 (Court of Appeals of Ohio (1940)), the court stated:

It seems clear to us that whenever a voter casts his ballot, such action is "political action," on his part, whether he votes on candidates or for or against some issues submitted on the ballot * * *. An election in which issues are submitted to a vote of the people is truly an exercise of the political power of the government and of the political rights of the electorate as is an election in which public officials are to be nominated or elected * * *. It is the conclusion of the majority of this court that any election in which the voters are asked to pass judgment on candidates for office or on issues, is political in its purpose or result * * *.

The explanation of the use of the word "political" to modify "election" in the first part of section 401 (e) is simple. There are many nonpolitical elections in which a person might participate in a foreign state-election of corporate officers or votes on candidates or measures in other nongovernmental organizations. In Matter of H---- et al. 56106/941, etc., (approved by the Acting Attorney General on August 5, 1942), which also involved section 401 (e) of the Nationality Act, we stated:

The specific question with which we were confronted in the H---- case was whether a Canadian Dominion plebiscite, the results of which were not decisive or conclusive but only advisory in nature, was a "political election" under section 401 (e). It was determined that the vote lacked the essential decisive quality of an election and, therefore, could not be regarded as such. No such difficulty exists in the case before us since the voting in which the appelant participated was under the Canadian statute, not merely advisory but decided whether there should or should not be prohibition in the town. (see sec. 69 (2), Liquor Control Act of Ontario; p. 7).

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 * * *.

In view of this obvious explanation, we cannot agree with the statement of the majority that unless it was intended to limit the application of this clause to "elections which are the subject of partisan activities," the use of the word "political" here would be a "purposeless gesture." It is true that in the following clause whereunder expatriation results from "participation in an election or plebiscite to determine sovereignty over foreign territory," the word "political" is not used, but there again there is a simple explanation. The kind of election intended there is adequately described and characterized. It therefore was not necessary to limit the word "election" any further. Truly, such an election is "political" in the broad sense of the word but the specific description in the second clause renders a general designation superfluous.

An intent to use the word "political" in its broad sense as synonymous with "governmental" may be seen from an examination of the whole of section 401. Under subsection (d), one loses American nationality by:

Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible.

In connection with a political subdivision of a foreign state, "political" is obviously used as synonymous with "governmental." Here it could not refer to partisan groups. The phrase "political election" with which we are concerned, appears in the very next subdivision of section 401, subsection (e). It is a general rule of statutory construction that, "A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears." Sutherland, Statutory Construction, p. 758. Nowhere in the statute is a distinction made between the use of the word "political" in subsection 401 (d) and its use in subsection 401 (e). Indeed, a careful examination of the comments to the proposed subsection 401 (e) contained in the report of the President's Committee which drafted the Nationality Act shows that the word was used in the same sense as it was in subsection 401 (d). It is stated that,

Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States * * *. [Italics supplied.]

It is a political attachment to a foreign state which they considered inconsistent with the retention of American nationality. Clearly the word "political" is here used in its broad sense to include the whole foreign state. A political attachment in its narrow sense would necessarily imply an attachment to one of the partisan groups in the country, not to the whole state.

The majority states that an expatriation statute is penal in nature and therefore must be strictly construed. We agree with this as a general proposition but do not agree that it requires the interpretation of the word "political" in section 401 (e) which they propose. In Sutherland, Statutory Construction (3d ed., 1943), section 5606, it is stated:

In re Wildberger, 214 Fed. 509 (E.D. Pa., 1914), is cited for this proposition. This case involved the question whether an individual's residence abroad under circumstances, which, if he were a citizen would have resulted in his expatriation, should be held to prevent his naturalization. The court properly held that the provisions of the expatriation statute (sec. 2 of the act of March 2, 1907) applied only to citizens and did not apply to this person while he was still an alien. Strict construction in the form of limitation of the application of expatriatiton statutes to citizens is a rather remote guide to the proper interpretation of the phrase "political election" in section 401 (e) of the Nationality Act.

The rule of strict construction does not require that penal statutes be given the "narrowest meaning" that the words of the statute will allow. Instead, the language of the statute should be given a reasonable and common-sense construction, consonant wiht the objects of the legislation.

See also United States v. Raynor, 302 U.S. 540, 58 S. Ct. 353.

What is the object of the legislation here involved? Examining all of section 401 of the Nationality Act (title 8, U.S.C.A., sec. 801), we see that each of the proscribed acts is such as to negative allegiance to the United States or to evidence an attachment to a foreign state. Such acts the legislators regarded as inconsistent with the retention of American citizenship, and therefore prescribed expatriation as the result.

We have sought to analyze the majority opinion to determine whether the interpretation placed on the word "political" in section 401 (e) is reasonable and whether it serves the objects of this legislation. Our first difficulty, however, is an inability to conclude with any certainty what would and what would not be a "political" election on the basis of the majority opinion. Apparently the election is not rendered political by virtue of the fact that there were partisan groups with opposing views on the issue, since that was so in the case before us. Such groups must rise to the designation of "political parties." This raises the question of how large, how permanent, and how many issues a group must be concerned with before it becomes a "political party" for the purposes of this provision. Before the repeal of the eighteenth amendment there was the Prohibition Party. Would the interest of this party in an election be sufficient to render it "political"? On the other hand, is it sufficient if there are groups measuring up to the designation of "political parties" who are interested in an election issue? Must they also be in disagreement? In the recent elections in France there was said to be no disagreement between political parties on the question of the creation of a new constitution. All were in favor of it. Would this render the vote on this question nonpolitical? Indeed, if "political" is "that which is done pursuant to political affiliation," would it not be necessary to show that the individual voted pursuant to his political affiliations?

Letter of November 8, 1945 — Office of town clerk and treasurer, Kingsville, Ontario.

See Appendix. (Not part of memorandum; an excerpt from The Evening Star (Washington, D.C.) Oct. 23, 1945, on a French vote.)

As we view it, all of these questions which the interpretation of the majority would sooner or later force us to decide are immaterial. The issue in an expatriation question is the individual's attachment to the United States versus his attachment to a foreign state. From that broad viewpoint, it is clear to us that voting abroad was considered by the Congress to be inconsistent with the retention of American citizenship when thereby the individual constituted himself a voice in a foreign government. The particular circumstances of the foreign governmental election, whether there were partisan groups or political parties interested or whether they happened to agree or disagree on a candidate or a measure, appear to us wholly immaterial.

A concept of strict construction does not warrant the exclusion from the operation of the statute certain voting, upon a basis which it appears to us bears no logical relation to the objects of the legislation. Indeed, it would seem to us singularly unfair to expatriate one individual who voted in a foreign governmental election because we had been informed that so-called political parties were involved therein and to hold another person not expatriated because we were unable to discover any partisan groups involved, or because according to some local foreign official such groups did not measure up to the designation of "political parties."

We have endeavored to analyze this problem on the basis of the authorities, the statute itself, its legislative history, and what interpretation appears consonant with the objects of the legislation. Accordingly, we have examined with interest but are not necessarily guided by the informal opinions of other departments rendered as a courtesy and without the benefit of access to the record.

Our colleagues conclude that the vote in which the appellant participated was not political. They therefore find it unnecessary to determine, although advisable to discuss, whether this vote was an "election." We, on the other hand, are satisfied that this vote was political, and whether it was an election is logically our next inquiry.

We have carefully considered the authorities on this question and cannot agree with the majority that the weight of authority in the United States supports the view that an "election" contemplates solely a vote at which officers are chosen. Indeed, a study of the cases at the present time and in existence at the time of the passage of the Nationality Act of 1940 reveals the contrary to be true. Votes on public issues have been held to be "elections" in Georgia, Illinois, Indiana, Iowa, Kentucky, Ohio, South Carolina, Texas, Utah, and Wisconsin. The view that an election includes only a vote to choose candidates is supported by decisions in California, Colorado, New York, Oklahoma, and Oregon. Thus the decisions in 10 jurisdictions favor the broader interpretation of the word "election", while there are only 5 jurisdictions taking the contrary view. Moreover an examination of the authorities reveals a decided trend in the more recent years to support the broader interpretation. The most recent case supporting the narrow construction was decided in 1917 whereas there have been cases in 1928, 1937, 1939, and 1940 supporting the broader construction. It is a logical assumption that Congress used the word as it was judicially understood at the time of the passage of the act in 1940 rather than as it was interpreted 20 or 30 years before. And again we believe that the narrow construction of the word would lead to unjust and illogical results. It would mean that A, who votes abroad for a member of a foreign legislature to be his representative in voting on governmental questions is expatriated, while B, who himself votes on such questions, thereby participating in the affairs of the foreign government more directly is not expatriated. For these reasons we have already rejected this narrow construction. In Matter of H---- et al., we stated:

Mays et al. v. City of Jackson et al., 147 Ga. 556, 94 S.E. 145 (1917) held a vote on whether city bonds should be issued to be an "election" within the terms of the state statute granting a city charter and requiring registration of voters "prior to any municipal election." Broadhurst v. Hawkins, 188 Ga. 316 (1939), held that a city vote on whether the sale of intoxicating liquors was to be permitted was an "election".

County of Union v. Ussery et al., 147 Ill. 207, 35 N.E. 618 (1893) holding that a county vote to determine whether domestic animals should be permitted to run at large was an "election" within the meaning of the state statute regulating "the manner of holding elections."

In Kelso v. Cook, 184 Ind. 173, 110 N.E. 987 (1916), the court stated, "By the term `general election' is usually meant the selection of officers to serve after the expiration of terms of former ones. By `special election' we usually understand one to fill a vacancy in office or, at which some measure or proposition is submitted to the electors. Proposed constitutional amendments have been submitted at a special election, and a proposition for a constitutional convention has been submitted to the voters at a general election. At all such elections, general or special, section 2 of article 2 (of the Constitution) governs as to the qualifications of voters."

Taylor v. Independent School District, 181 Iowa 544, 164 N.W. 878 (1917) held that a vote on a proposal to create a consolidated school district is an "election" within the meaning of the constitutional provision prescribing the qualifications for electors. It should be noted that this case overrules the earlier decision in Iowa, Coggeshall v. City of Des Moines, 138 Iowa 730 (1908), cited by the majority.

Morgan v. Goode, 151 Ky. 284, 152 S.W. 584 (1912), held that a vote to determine where the county seat was to be located was an "election" within section 148 of the Kentucky constitution.

In State ex rel. Brownwell v. Council of the Village of Stryker, 95 Ohio State 101 (1916), it was held that a vote in a town to determine whether the sale of intoxicating liquor should be permitted was an "election" within the meaning of section 6136 of the General Code and would preclude the holding of another election for that purpose before the expiration of 2 years. State ex rel. Green v. City of Cleveland, 33 N.E. (2d) 35 (Court of Appeals of Ohio, 1940), quoted supra, held a vote by the electorate on an issue to be a "political election."

State v. State Board of Canvassers, 78 S.C. 461, 59 S.E. 146 (1907), involved a county vote on the question whether intoxicating liquor should be sold. The State constitution provided that, "All elections of the people shall be by ballot." The vote on the liquor question was not so conducted. It was contended that since this vote did not elect officers it was not an "election" within the constitutional provision. The court rejected this contention stating:


"An election is the expression of a choice by the voters of a body politic, and it seems to us that the preference so expressed, whether it be for a particular individual or in favor of a stated proposition is nevertheless an election."

Adamson v. Connally, 112 S.W. (2d) 287 (Tex.Civ. Apps., 1937), cited supra, page 3, involving a local option election on the question whether intoxicating liquor should be sold in the county.

Hardy v. Beaver City, 41 Utah 80, 125 P. 679 (1912), held that a city election to determine whether the sale of intoxicating liquors should be authorized was an "election" within the provisions of a State statute prescribing that elections may be contested.

Vulcan Lass Co. v. State, 194 Wis. 636, 217 N.W. 412 (1928), held that a referendum upon the question of issuing bonds for the construction of water works was an "election" within the meaning of a state statute prohibiting attempts to influence voters.

In Bliss v. Hamilton, 171 Calif. 123, 152 P. 303 (1915), it was held that a vote to determine whether an election district was to be formed was not an "election" within a constitutional provision prohibiting the legislature from passing special laws in regard to the conducting of elections.

Mayor v. Shattuck, 19 Colo. 104, 34 P. 947 (1893), holding that a statute imposing a property qualification for voting in an "election" in a question of the dissolution or annexation of towns was not contrary to a constitutional provision that every male person over 21 was entitled to vote at "all elections."

Schieffelin v. Komfort, 163 App. Div. 741, 149 N.Y. Supp. 65 (1914), holding that the submission to the people of the question whether a constitutional convention should be held did not constitute an "election" within the meaning of a constitutional provision requiring the registration of voters before an "election."

In Pitcher v. Dervage, 56 Okla. 583, 156 P. 218 (1916), it was held that a vote on the proposition to unite different school districts into a consolidated district was not an "election" within the purview of the constitutional provision requiring that the vote at election be by ballot.

Bierl v. Columbia County, 73 Or. 107, 144 P. 457 (1917), held that a constitutional provision describing the qualifications of electors in all elections does not include all acts of voting but refers only to elections of public officers.

We have not cited three of the cases cited by the majority as holding that an "election" contemplates only those votes where candidates are chosen because in our opinion those cases do not support that proposition. In McClure v. Topf Wright, 112 Ark. 342, 166 S.W. 172 (1914), a local statute required that before any person could acquire a license to sell intoxicating liquor, a majority of the adult white inhabitants of the town would have to sign a petition that the license be issued, provided the county had voted "for license" at the preceding general election. It was held that limiting the signers of the petition to the adult white inhabitants was not contrary to the provisions of the fifteenth amendment since the voting took place at the general election when the people voted "for license." In Kenney v. McDonough, 315 Mass. 689 (1944), the majority voters at a state election voted in favor of placing the office of city auditor under civil service. The case decided nothing as to the nature of this vote and whether or not it was an election. The problem was created by a provision in the city charter to the effect that, "The city council shall * * * elect by a majority of its members * * * an auditor." Pursuant to the determination to place the auditor's office under civil service, the president of that council and a majority of its members signed a civil service requisition for a particular candidate. The point of the decision was that this informal signing was not an election by the council since the council did not take a formal vote. Consequently, it was held that there had not been compliance with the city charter requiring that the council elect an auditor. Thorton v. Territory of Washington, 3 Wash. Terr. 482, 17 P. 896 (1888), was concerned with the constitutionality of a delegation by the legislature of the right to regulate or license the sale of intoxicating liquors to each of the election precincts in the territory. The court held that while such a delegation of power to a municipal corporation would be valid, the legislature could not delegate this power to an election district. It was pointed out that under the statutory set-up each election district would have to repeal the general statutory prohibition against the sale of liquor, and it was this that the court stated could not be done by a vote or election. The court said (p. 490), "Indeed, the word `election' until quite lately, when applied to political subjects, never denoted the choice of a principle, or a rule of action, but merely a choice of persons. To make the word `election' means the choice of a state law is to invent for a word a new meaning, which it never previously had."

See footnote 17.

See footnote 16.

See footnote 14.

See footnote 7.

See footnote 12.

In re Great Western Petroleum Corporation, 16 F. Supp. 247 (S.D. Calif., 1936), involved the question whether the word "mining" in a statute should be construed as limited to the excavation from the earth of metals and solid minerals or should be held also to include the extraction of oil. In deciding in favor of the broader construction, the court stated (p. 249):


"But oil is now so generally considered a mineral and the extraction of oil is now so generally considered as mining, that we must assume that the California Legislature of 1933, in using the word `mining' in the section, used it in the sense in which the word had come to be used at that time and not in the sense in which a similar word might have been used by the California Legislature of 1872. Language is a democratic and popular process. Usage determines meaning. And the history of the English language is replete with illustrations of words the meaning of which has either been enlarged or entirely changed in the cases of a few decades. Courts must bear this in mind in endeavoring to interpret words used in legislative enactments."

Crawford, Statutory Construction (1940), p. 318: "Similarly, when a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted, even though the ordinary meaning of the word is thereby enlarged or restricted, and especially in order to avoid absurdity or to prevent injustice * * *."

See page 4, supra.

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.

Having concluded that the appellant expatriated herself under section 401 (e) of the Nationality Act, we might pass over the question whether she was also expatriated under section 401 (a). We consider it advisable to discuss this provision, however, not only because it was found applicable to the appellant by the Board of Special Inquiry and the Central Office of the Immigration and Naturalization Service, but because again we cannot agree with the disposition of this issue by the majority opinion.

It will be recalled that 4 years after the appellant's birth in this country in 1917 her parents returned to Hungary, and in 1925 they emigrated to Canada, where the appellant has since resided. She acquired Canadian citizenship in 1931 through her father's naturalization during her minority.

Section 401 of the Nationality Act of 1940 provides that a national of the United States loses his nationality by:

(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship; * * *.

In October 1943, at the age of 26, the appellant sought for the first time to come to the United States for permanent residence. The second proviso to section 401 (a) gave persons who had acquired foreign nationality during minority 2 years from the effective date of the act (January 13, 1941) to return to this country for permanent residence or else be deemed to have lost their American nationality. The appellant did not so return before January 13, 1943. Under section 401 (a) she would have lost her American nationality, therefore, unless she comes within the doctrine of Matter of G----, 56127/839 (approved by the Attorney General July 3, 1943). That case also involved a person born in the United States who acquired Canadian nationality during minority through his father's naturalization abroad. Upon attaining his majority in 1919, however, he registered in Canada with the American Consul as a United States citizen and he registered two years later. The same year he came to the United States for permanent residence, but because he could not find suitable employment here he had to return to Canada. For 20 years thereafter he came to the United States about five times a year, always entering as an American citizen. Reviewing his entire course of conduct during the 21 years after he attained his majority, it was held that he had elected American nationality prior to the effective date of the Nationality Act and, therefore, did not have to return to the United States within the 2-year period prescribed in section 401 (a) to preserve his citizenship. The decision was based upon the authority of Perkins v. Elg, 307 U.S. 325, holding that a person who has acquired foreign citizenship derivatively during his minority "does not thereby lose his citizenship in the United States, provided, that on attaining majority, he elects to retain that citizenship and to return to the United States to assume his duties."

In the case before us, do we have evidence of such an election of American nationality prior to the effective date of the Nationality Act of 1940, as would remove the appellant from the operation of section 401 (a)? Since acquiring Canadian citizenship, the appellant has never resided in the United States or come here with the intention of remaining. She testified, however, that she has come to the United States on visits and has been admitted upon presentation of her birth certificate although no record of her admission as a citizen was made. Her longest visit was in 1937, when at the age of 20 she visited in Connecticut for a period of between 5 and 8 weeks. Aside from that, she has been to Cleveland on week ends, and her last visit was in the spring of 1943 when she spent 1 day in Detroit. She has never registered at an American Consulate as a United States citizen. She registered under the Canadian National Registration Regulations of 1940, not as a United States citizen, but as having Canadian citizenship derived from her father. In 1942 she voted in the Kingsville, Ontario, election in which, as we have already pointed out, only British subjects are eligible to vote.

We cannot agree that the appellant's actions since attaining her majority evidence such an election of Canadian citizenship as would render her not a dual national and thus excluded from the requirement of Section 401 (a) that such persons returning to the United States within the prescribed 2-year period to preserve their citizenship has evidence of an election of American in preference to Canadian citizenship. The majority relies solely on the appellant's temporary visits to the United States when she entered upon presentation of her birth certificate. That she availed herself of this convenience, however, constituted at most an acknowledgment of her claim to American citizenship. The distinction between such acknowledgment and an election of American in preference to Canadian citizenship is obvious. An election implies a choice of one as against the other. As evidence of such a choice, the Elg case contemplates and the Nationality Act prescribes a return to this country for permanent residence. The appellant chose to visit here on occasion but to make her home in Canada. The majority states, "She did nothing which could in any way be construed as manifesting an intention to be considered a Canadian * * *." She was registered as a Canadian, however, and later she voted as a Canadian. Indeed, if an election of citizenship or the other is to be found, there would appear to be more evidence of an election of Canadian nationality. It is our considered opinion, however, that she did not intend to elect either nationality and continued to be a dual national.

Our colleagues cite Matter of Y----, 56158/623 (renumbered A-5553101) (July 8, 1944), for the proposition that a dual national's temporary admission to the United States upon a claim of citizenship constitutes an election of United States citizenship. In that case, however, the subject who had been born in the United States and had acquired Canadian citizenship during minority, in addition to having been admitted to this country temporarily as a citizen, had come here for 2 years at the age of 18, had never exercised any of the rights of Canadian citizenship, and had registered under the United States Selective Training and Service Act. Considering this a border-line case, we nevertheless held that the subject had elected American in preference to Canadian citizenship prior to the Nationality Act. It was stated:

An election does not necessarily require a formal prescribed procedure, but there is possibility of determination from the circumstances of a person's conduct and behavior (citation). It must, however, indicate a definitive choice of citizenship * * *.

We cannot hold that the few week ends the appellant spent in this country constituted "a definitive choice of citizenship," especially in the light of her actions evidencing an affirmation of her Canadian citizenship. We believe that temporary admissions to this country upon a claim of citizenship by a dual national should be considered in weighing evidence to determine whether the individual elected American citizenship prior to the Nationality Act, but that they do not in themselves show that the individual intended to elect American citizenship and to abandon his other citizenship. Upon consideration of all the circumstances of this case, therefore, we do not agree that the appellant elected American citizenship prior to the Nationality Act of 1940, and, consequently, that under section 401 (a) she was obliged to return to the United States for permanent residence within the prescribed 2-year period to preserve her citizenship.