The opinion of the court was delivered by: HALL
The American born plaintiff seeks in this action a judgment that she is a citizen of the United States.
The first thing to take into consideration is the jurisdiction of the Court. I will now find that under Section 903 of Title 8 U.S.C.A., this Court has jurisdiction to hear and try this case and make a judicial determination as to whether or not the plaintiff in this case was deprived of her citizenship by voting in the elections in Japan according to the evidence in the case.
The Section involved on the merits of 401(e) of the United States Nationality Act, 801(e), Title 8, U.S.C.A., and reads as follows: 'A person who is a national of the United States, whether by birth or naturalization, shall lost his nationality by * * * voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory'.
The first clause is the one that is involved here, that is 'voting in a political election in a foreign state'. It calls for a judicial determination of several words; and also some factual determination. In the first place, from the facts in the case, there isn't any doubt but what the plaintiff in the case voted, that is, she cast her ballot in two elections, at least, in Japan in the years 1946 and 1947 (although the State Department rests its position upon the claim that she has expatriated herself under the provisions of Section 401(e), by voting in the Japanese political elections of April 1946).
The main question is whether or not it was a 'State'. It is the contention of the defendant, here, the Secretary of State, that Japan was a State. As to the definition of the word 'State', a great many text books and writers on International Law have dealt with the word for many years; but actually its meaning has not changed much, since it was defined by Vattel in his French work published about 1773. That definition is continued on through Moore's Digest of International Law, Revere, Hackworth and others. I do not wish to ever be in the position of citing simply myself in rulings but in the case, U.S. v. Kusche, D.C., 56 F.Supp. 201, the question was raised whether or not Hitler's Third Reich was a State' that is to say, whether or not it was the same German State as that from which the person involved there had renounced his allegiance. I held that it was; but the case reviewed the elements necessary to constitute a State, and I came to the conclusion, to which I still adhere, that a State comprehends a body of people living in a territory, who are not subject to any external rule but who have the power within themselves to have any form of government which they choose and have the power to deal with other States. In other words, they have sovereignty. That is the first essential, in a State; and I think that is recognized by the cases on which the government relies, e.g.- Jones v. U.S., 137 U.S. 202 at page 212, 11 S. Ct. 80 at page 83, 34 L. Ed. 691. The Court says, 'Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges', and so forth. But the kernel of the definition, as included there, is sovereignty. Likewise, in the Venustiano Carranza case- Oetjen v. Central Leather Company- , 246 U.S. 297, 38 S. Ct. 309, 62 L. Ed. 726, the Government of the United States acting through the regularly elected officials had officially recognized,- that is to say, the President of the United States had officially recognized the Government of Carranza as the Government of Mexico, and this is certainly quite different than the situation which has obtained here.
In an effort to determine whether or not Japan has any sovereignty and the other attributes which make for the creation or existence of a State, we refer to the plaintiff's Exhibit 2, here, 'Occupation of Japan', the official book put out by the State Department of the United States containing the text of the various documents which relate to Japan prior to the surrender and subsequent to the surrender. I don't think it is necessary to review the Potsdam Declaration, the Emperor's reply thereto and the acceptance thereof. But to start with, the Instrument of Surrender, itself, which is found on page 62 of this document, recites, 'We'- now, that is not only the Japanese but also Douglas MacArthur who has signed as Supreme Commander for the Allied Powers.
Incidentally, I can take judicial notice of the fact that prior to this date he had been designated the Supreme Commander for the Allied Powers by the various Allied Powers to act for and on behalf of all of them in connection with the surrender and all subsequent matters. That document is not in this book. However, it is available and it is a matter of which the Court can take judicial notice. The Instrument of Surrender is signed by the Japanese Government and also by the United States Representatives, and Representatives of the Republic of China, the United Kingdom, Soviet Russia, Australia, Dominion of Canada, French Republic, the Netherlands and New Zealand.
And, further: 'The authority of the Emperor in the Japanese Government to Rule the State shall be subject to the Supreme Commander for the Allied Powers who will take such steps as he deems proper to effectuate those terms of surrender.'
Some suggestion is made, on behalf of the Secretary of State, that the Far Eastern Commission superseded and supplanted the Supreme Commander for the Allied Powers in the Government of Japan. But the original proposal was only that the Allied Commission should act as an advisory body; and that is all it finally amounted to actually, in the agreement which I think was effectuated at Moscow and promulgated December 27, 1945. The Far Eastern Commission is given power to formulate the policies, principles and standards. It has the power to review, on the request of any member, any directive issued by the Supreme Commander and the like, and the functions of the United States Government are defined and outlined. But as I indicated to counsel during the course of the argument, there is a subdivision B to that and that is the, 'Allied Council for Japan'; and under that: 'The Supreme Commander shall issue all orders for the implementation of the Terms of Surrender,' So that the Terms of Surrender- and I am satisfied it has been so regarded by the Supreme Commander in Japan and by the United States Government in supporting the Supreme Commander for the Allied Powers in various disputes which have arisen with the Far Eastern Commission- were that he is the one who effectuates the instrument of surrender; and under the instrument of surrender the authority of the Emperor and the Japanese Government to rule shall be subject to the Supreme Commander for the Allied Powers, and not to any Far Eastern Commission. So actually, in my judgment, and I so hold, this agreement of the Foreign Ministers to establish the Far Eastern Commission did not take away the power of the Supreme Commander which, as I indicated, was complete authority over the Emperor and the Japanese Government.
Returning again to 'Occupation of Japan', we find here the document of August 29, 1945. I think it was promulgated on September 6, 1945. On page 75 of 'Occupation of Japan' under the subject 'Allied Authority,' we read: 'Although every effort will be made, by consultation and by constitution of appropriate advisory bodies, to establish policies for the conduct of the occupation and the control of Japan which will satisfy'- not the Japanese Government but- 'The Principal Allied powers, in the event of any differences of opinion among them, the policies of the United States will govern.'
'Relationship to Japanese Government.'
'The authority of the Emperor and the Japanese Government will be subject to the Supreme Commander, who will possess all powers necessary to effectuate the surrender terms, and to carry out the policies established for the conduct of the occupation and the control of Japan.'
'The Japanese Government will be permitted, under his instructions, to exercise the normal powers of government in ...