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.]

"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

States or (in the case of women marrying aliens) have never left it.

The Immigration and Naturalization Service has regarded the acts of these citizens, or former citizens, as amounting to attempted expatriation which never became effective. I quote from a memorandum prepared by the Solicitor of the Department of Labor in 1938:

"If it is to be kept effective for all cases, it would seem that the statute should be held to nullify the attempted expatriation and to render impossible any benefit from wartime naturalization at any time. If the naturalization is recognized automatically upon the termination of the war, the citizen desiring to escape his responsibilities to this country will benefit from the wartime act which the statute refuses to recognize and seeks to prevent. On the other hand, if the wartime naturalization is held ineffectual at all times, it can never inure to the benefit of an erring citizen. * * * If that act is invalid at its inception, our law does not provide that it may be made valid by an implied ratification."

Your Legal Adviser in a memorandum submitted with your letter holds that expatriation became effective upon termination of the war and indicates that this view has prevailed in your Department for many years. His conclusions are as set forth below:

(1) "Since naturalization gives rise to a status of a continuing character, this Department holds that, while the naturalization of an American citizen in a foreign country when the United States was at war, that is, between April 6, 1917, and July 2, 1921, did not result in the loss of American citizenship so long as the United States continued to be at war, it did result in such loss when the United States ceased to be at war, unless the person in question had ceased to be a national of the foreign state, under its law or a treaty to which the United States was a party.

(2) "For the reasons mentioned, and in view of the decisions cited, it seems proper to hold that an American woman who married an alien while the United States was at war and was still the wife of such alien when the United States ceased to be at war should be regarded as having lost

her citizenship of the United States at that time, under the provisions of section 3 of the act of March 2, 1907, regardless of the place of her residence.

(3) "To sum up, if an oath taken by an American national while the United States was at war was clearly an 'oath of allegiance,' within the meaning of section 2 of the act of March 2, 1907, and if the person taking the oath indicated by his conduct, after the termination of the war, continued adherence to the foreign state to which the oath was taken, as, for example, by protracted residence within its territory after the close of the war, even though the nationality of the foreign state was not acquired through the taking of the oath, it would seem reasonable to hold that such person has expatriated himself under the statutory provision in question. It is believed, however, that a different conclusion should be reached if the person who took the oath refrained, after the United States had ceased to be at war, from doing anything which indicated continued allegiance to the foreign state, but on the contrary acquired a permanent residence in the United States before, or very shortly after, the United States had ceased to be at war and thereafter acted consistently as a citizen of the United States. Such action might in itself be regarded as indicative of a practical disaffirmance of the obligation to the foreign government involved in an oath of allegiance. Since the nationality of a foreign state is not acquired in cases of this kind, it does not seem reasonable to apply precisely the same rule which is applied in cases involving naturalization, as indicated above."

The Legal Adviser also points out that if we refuse to recognize the expatriation as ever becoming effective we do, in effect, accord these persons, who may have acted in defiance of the statutory inhibition, special privileges denied to those who expatriate themselves lawfully in time of peace-that the latter clearly lose all rights of citizenship whereas the former, under the view which the Legal Adviser rejects, while perhaps acquiring a foreign citizenship also retain their American citizenship and may claim its privileges when they find it convenient to do so.