originally chartered upon obtaining permission in writing from the commission. The commission shall not grant such permission unless the bank has capital and surplus in an amount at least equal to the aggregate minimum capital and surplus, respectively, required for the establishment of a bank in each of the various places where such bank and its branches are to be located and unless the commission is satisfied as to the sufficiency of the capital and surplus of the bank, the necessity for the establishment of such a branch and the prospects of successful operation if established: Provided, however, That in such cases where the parent bank has its principal office in a city having a population of seventy-five thousand (75,000) or over according to the last Federal census, such permission may be granted for the establishment of a branch bank only if such branch is to be within the same county as said parent bank or within twenty-five (25) miles of the principal office of said parent bank: Provided further, That no branch bank shall be established in a city or village in which a bank is in operation. Such permission shall not be granted if the establishment of such branch would result in more than one (1) bank or branch bank to each three thousand (3,000) population in the city or township where such branch is proposed to be located. **"

*

"SEC. 114. * * Notwithstanding the provisions of any law to the contrary, any consolidated bank resulting from the consolidation of two (2) or more State banks or any one (1) or more banks or trust companies, as provided for in section 104 of this act, and any State bank or national banking association which purchases the assets of a State bank, as provided for in section 112 of this act, may, with the written permission of the commission, establish and operate as a branch or branches the consolidating bank or banks or any bank which sells its assets to another State bank or national banking association, as provided in section 112 of this act: Provided, however, That the commission shall not grant such permission unless the unimpaired capital of the consolidated or purchasing bank or association is at least fifty thousand ($50,000) dollars, and the capital and

surplus of such bank or association is in an amount at least equal to the aggregate minimum capital and surplus, respectively, required for the establishment of a bank in each of the various places where such bank or association and its branch or branches are to be located, and the commission is satisfied as to the sufficiency of the capital and surplus of such bank or association, and the necessity for the establishment of such a branch or branches, and the prospects of successful operation if established."

The Attorney General of the State of Michigan and the General Counsel of your Department in opinions inclosed with your letter have concluded that the question stated by you should be answered affirmatively.

The question has been submitted to me particularly because, as the general counsel states, a seemingly contrary conclusion was reached by the Acting Attorney General in an opinion of August 13, 1930 (36 Op. 344, 349). That opinion dealt with a statute of the State of Pennsylvania which expressly prohibited the establishment of branch banks, with exceptions not pertinent, and the Acting Attorney General rejected as "at best extremely doubtful" the theory advanced that notwithstanding the express inhibition in one statute the result might be accomplished under another and earlier statute dealing generally with consolidations of corporations. I do not feel that the conclusion reached in the opinion is controlling. It is necessary, however, to notice the following statement therein:

"While the premise [relating to a proposed construction of the Pennsylvania statute] is doubtful, the conclusion is clearly unsound because the latter section [sec. 5155 (c), R. S.] has reference, not to special privileges extended to consolidated banks but to permission to establish and operate branches extended generally to State banks, whether consolidated with other State banks or not. Furthermore, Revised Statutes 5155 (b), as amended, defines the conditions upon which branches may be retained and operated by national banking associations after their consolidations with State banks, and it is upon this section that the right of a consolidated national banking association to continue in

operation the offices of its constituent corporations as branches of its business must depend."

The proposition set up in the first sentence, as it is stated. and as applied to a statute such as that of the State of Michigan above quoted, does not appear to be required by any clear provision of the Federal law and, however reasonable some such deduction might be found in other circumstances, I do not consider the statement as presenting any insurmountable obstacle here.

It appears to me that section 114 of the Michigan statute may reasonably be read as indicating additional places at which branch banks may be established and operated-that is, the situs of any bank which has been consolidated with another or whose assets have been acquired by anotherrather than as extending special privileges. The reference therein to national banks evidences an intention on the part of the legislature to enact a statute that could be availed of by such banks under the Federal law for, as the Attorney General of Michigan recognizes and states in his opinion, the State statute is wholly ineffective in the matter of the establishment of branches by national banks save as it is adopted and made applicable under the Federal statute.

Commenting upon the second sentence in the quoted excerpt from the opinion of August 13, 1930, your general counsel refers to an earlier opinion (36 Op. A. G. 116) and correctly states that under it "branches which had to be relinquished upon consolidation because they could not be retained under section 5155 (b) might immediately be reestablished under section 5155 (c) upon obtaining the consent and approval of the Comptroller of the Currency and complying with the requirements of the law." It appears, however, that there was no occasion to mention this in connection with the general statement of the law in the 1930 opinion.

Considering the foregoing, it is my opinion that the question submitted by you, and quoted in the first paragraph hereof, should be answered affirmatively.

Respectfully,

58039m-42-vol. 39- -32

ROBERT H. JACKSON.

LOSS OF CITIZENSHIP THROUGH MARRIAGE TO ALIEN, FOREIGN NATURALIZATION, OR FOREIGN OATH OF ALLEGIANCE

American women who married aliens, American citizens who acquired foreign citizenship through naturalization, and American citizens who took foreign oaths of allegiance while the United States was at war lost their citizenship upon its termination, except as indicated in the opinion.

The statutory provision that no citizen shall be allowed to expatriate himself when this country is at war was undoubtedly intended for the protection of the Government and there may be occasions when the citizen is barred from setting up the limitation in his behalf. AUGUST 22, 1940.

The SECRETARY OF STATE.

MY DEAR MR. SECRETARY: In your letter of July 10 you request my opinion concerning loss of citizenship in the following cases:

"(1) The case of an American citizen who obtained naturalization in a foreign state, upon his own application or through the naturalization of a parent, while the United States was at war, that is, between April 6, 1917, and July 2, 1921;

"(2) The case of an American woman who acquired naturalization in a foreign state during the period mentioned, through marriage to an alien or through the naturalization of her husband in a foreign state;

"(3) The case of an American citizen who took a foreign oath of allegiance during said period."

The applicable statutory provisions are contained in sections 2 and 3 of the act of March 2, 1907, c. 2534, 34 Stat. 1228, and are quoted below:

"Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state. [U. S. C., title 8, sec. 17.]

"When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of

his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war." [U. S. C., title 8, secs. 16, 17.] [Italics supplied.]

* *99

"Sec. 3. That any American woman who marries a foreigner shall take the nationality of her husband. * [This provision was superseded September 22, 1922 (42 Stat. 1022; U. S. C., title 8, sec. 9).]

As these provisions have been construed by the Department of State, by the Immigration and Naturalization Service (formerly in the Department of Labor and recently transferred to this Department), and by the courts in the cases hereinafter cited, it has been generally understood that the last-quoted proviso in section 2 prevented loss of citizenship while the United States was at war. The proviso undoubtedly was intended for the protection of the Government, as stated in Petition of Prack, 60 Fed. (2d) 171, infra; and there may be occasions when the citizen is barred from setting up the limitation in his own behalf with the resultant determination of his rights as though the limitation did not exist, but it does not appear that any case requiring such action has reached the courts. The theory was applied in Petition of Prack, but unnecessarily and without affecting the correctness of the conclusion, as will hereafter appear.

Assuming that these persons did not lose their citizenship during the war, it is to be noted that the factual status acquired by them might, and in cases of naturalizations and marriages ordinarily did, continue beyond the war, even throughout the lifetime of the affected individual-presenting the further question whether it must be held that during all such time these persons retained their American citizenship. Some of them have in fact acquired and long exercised the privilege of foreign citizenship and have never returned to this country; others have returned to the United