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cided without an adjudication of the question presented by you, I now have the honor to reply to your inquiry.

The facts appear from your letter and papers in the file accompanying it to be as follows:

Pietro Mariani is a native of Italy who was regularly admitted to the United States on or about June 17, 1913. On September 22, 1919, he was naturalized by the Circuit Court of Multnomah County, Oregon. Within five years after his naturalization he went to Italy with an American passport. While there he married, in 1921, and a child was born in 1923. He remained in Italy for several years. Because of his long absence from the United States, proceedings were instituted to cancel his naturalization in accordance with the provisions of section 15 of the Naturalization Act of June 29, 1906, c. 3592, 34 Stat. 601 (U. S. C., Title 8, sec. 405), and the certificate was cancelled by the United States District Court for the District of Oregon on August 19, 1925. In 1926 Mariani returned to the United States as an alien under the provisions of the World War Veterans' Act of May 26, 1926, c. 398, 44 Stat. 654 (U. S. C., Title 8, secs. 241-246, 392a), which allowed the readmission to the United States of certain aliens who had been in the military forces of the United States. He was naturalized again on November 21, 1929. On January 9, 1930, he filed with the Department of Labor a petition for the issuance of nonquota immigration visas for his wife and child in Italy in accordance with the provisions of sections 4 (a) and 9 of the Immigration Act of May 26, 1924, 43 Stat. 155, 157 (U. S. C., Title 8, secs. 204, 209).

Your Department declined to issue such visas, believing that the wife and child still are citizens of the United States; but the Department of State declines to issue passports to them, as it takes the view that, on account of the cancellation of the certificate of naturalization of Mariani, his wife and child cannot be regarded as citizens of the United States.

If the first certificate of naturalization had remained in effect, the wife would be a citizen of the United States by virtue of section 1994, Revised Statutes, which was in effect at the time of her marriage to Mariani and which provided:

"Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen."

But this section was repealed by section 6 of the Act of September 22, 1922, commonly known as the "Cable Act," c. 411, 42 Stat. 1022 (U. S. C., Title 8, sec. 10), and the second naturalization of Mariani, which occurred since the passage of the Cable Act, consequently does not affect the citizenship of his wife.

The claim of citizenship for the child is based upon section 1993, Revised Statutes (U. S. C., Title 8, sec. 6), which has never been repealed and which provides:

"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; * *

The question is whether the cancellation of Mariani's first certificate of naturalization under section 15 of the Naturalization Act of 1906 affects the status of his wife and child, it being clear that they would be entitled in this country to the rights of citizens of the United States were it not for the cancellation. This section, 34 Stat. 601 (U. S. C., Title 8, sec. 405), provides in part as follows:

"If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, * * *"

The constitutionality of the provision just quoted has been upheld in Johannessen v. United States, 225 U. S. 227, and Luria v. United States, 231 U. S. 9. In the latter case the Court said of this provision (231 U. S. at p. 24):

"It does not make any act fraudulent or illegal that was honest and legal when done, imposes no penalties, and at most provides for the annulment, by appropriate judicial proceedings, of merely colorable letters of citizenship, to which their possessors never were lawfully entitled."

This indicates that if the certificate is cancelled it must be regarded as a nullity.

The Naturalization Act of 1906 makes no provision for a wife or child of a person whose certificate is cancelled under this provision. And nothing in section 1993 or section 1994 of the Revised Statutes, which are quoted above, seems to me to require that an alien, whose only claim to citizenship is derived through naturalization which has been improvidently granted and annulled as fraudulently procured, should continue to enjoy the privileges of citizenship. It would be especially anomolous for persons who, like the woman and child involved in this case, have never resided in the United States to be citizens, although the person from whom they derived their rights is regarded as never having been a citizen.

Owing to the dearth of direct authority on the point, I have made careful examination of the various unreported cases which are referred to in the opinions, memoranda, and files which you submitted to me. None of them contains any real discussion of the point. It is true that they do give some slight support to the claim of citizenship of the wife and child, but countervailing inferences can be drawn from other cases.

None of the cases in the Supreme Court dealing with Government land grants to which I am referred, such as United States v. Detroit Lumber Company, 200 U. S. 321, enunciates any principle which seems applicable to the present situation. Although the Supreme Court has recognized that there is a certain analogy between a grant of citizenship through naturalization and a Federal land grant, I do not believe that the analogy extends so far as to afford to a wife or child of an alien who has fraudulently obtained naturalization papers the same protection which equity has given to bona fide purchasers of land for which Federal grants had been fraudulently obtained.

141183-32-VOL 3629

I conclude that the wife of Mariani and his child born in Italy in 1923 are not citizens of the United States.

Respectfully,

WILLIAM D. MITCHELL.

TO THE SECRETARY OF LABOR.

ESTABLISHMENT OF BRANCH BY NATIONAL BANKING ASSOCIATION

The Comptroller of the Currency is without authority to approve the application of the Live Stock National Bank of Sioux City, Iowa, to establish a branch in Sioux City, because the law of Iowa does not permit a State bank to establish a branch or office in that city.

DEPARTMENT OF JUSTICE,

July 29, 1931.

SIR: I have the honor to acknowledge receipt of your letter of June 26, 1931, stating that the Comptroller of the Currency has received an application from the Live Stock National Bank of Sioux City, Iowa, for permission to establish a branch within the corporate limits of that city. My opinion is requested as to whether or not the Comptroller may lawfully approve the application.

The law permitting the establishment of branch banks by national banking associations is contained in the Act of February 25, 1927, c. 191, sec. 7, 44 Stat. 1224, 1228, which amends section 5155 of the Revised Statutes of the United States to read in part as follows:

"SEC. 5155. The conditions upon which a national banking association may retain or establish and operate a branch or branches are the following:

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"(c) A national banking association may, after the date of the approval of this Act, establish and operate new branches within the limits of the city, town, or village in which said association is situated if such establishment and operation are at the time permitted to State banks by the law of the State in question.

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"(e) No branch of any national banking association shall be established or moved from one location to another with

out first obtaining the consent and approval of the Comptroller of the Currency.

"(f) The term 'branch' as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State or Territory of the United States or in the District of Columbia at which deposits are received, or checks paid, or money lent."

Under these provisions, one of the conditions precedent to the establishment of a branch bank by a national banking association is that "such establishment and operation are at the time permitted to State banks by the law of the State in question."

The applicable law of Iowa is the Act approved March 13, 1931 (c. 203, Laws of the Forty-fourth General Assembly of the State of Iowa), which became effective March 19, 1931, and provides:

"SECTION 1. That section ninety-two hundred fiftyeight-b one (9258-b1) of the code, 1927, be repealed and the following enacted in lieu thereof:

"9258-b1. No banking institution shall open or maintain any branch bank. However, as may be authorized by and subject to the jurisdiction of the banking department any banking institution may establish an office for the sole and only purpose of receiving deposits and paying checks and performing such other clerical and routine duties not inconsistent with this act. No banking institution may establish any office beyond those counties contiguous to the county in which said banking institution is located nor in a city or town in which there is already an established banking institution. No office shall be continued at any place after a banking institution has actually commenced business at that place. Nothing in this act shall prohibit national banks the privileges of this section whenever they may be so authorized by federal law.'".

The first sentence of this Act in terms prohibits the establishment by State banks of a branch anywhere within the State. Although a later sentence authorizes the establishment of an office for the purpose of receiving deposits and paying checks" (which would seem to come within the meaning of the term "branch" as used in the

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