Through the intelligent and energetic efforts of our consul at Zurich (Mr.
Catlin) a case involving considerable property was appealed from the
cantonal to the federal tribunal, the Swiss supreme court, and an opinion
obtained which probably is the most decisive judicial pronouncement on one
very characteristic feature of such cases, and gives some assurance that the
local contentions heretofore held and expressed, if properly submitted to
this tribunal, must be reversed as this has been. A copy of the opinion is
inclosed.
[Inclosure in No. 242.]
Judgment of the Swiss Federal Court.
In the matter of Carl Heinrich Weber, of Zurich, in Philadelphia, State
of Pennsylvania, North America, appellant, represented by Lawyer
Haggenmacher,* of Zurich,
concerning waiver of Swiss citizenship, the following facts appear from
the documents presented, viz:
A.—Carl Heinrich Weber, of Zurich, born in 1845, emigrated in 1873 to the
United States of America; he was, at the time of emigrating, and has
been ever since, under guardianship in Zurich. In 1879, Weber, having
acquired United States citizenship, applied for release from his rights
as a Swiss citizen. His sister Maria, and his guardian, as well as the
orphans’ court of Zurich, then instituted proceedings against his
release on the ground that the identity of the applicant with the Zurich
citizen C. H. Weber was not proven, and because the said C. H. Weber was
under guardianship, and therefore, as not being competent to transact
business on his own account, could not waive his Swiss citizenship.
The federal court by a decision dated September 27, 1879, rejected the
latter objection as unfounded, but, on the other hand, deferred any
judgment, in so far as the question of the identity of Carl H. Weber
with the applicant was concerned, until sufficient further evidence
could be produced. Therefore, the judge of instruction of the federal
court repeatedly accorded the applicant a period of time for filing new
means of proving his identity with C. H. Weber. Inasmuch as during these
periods the applicant appealed merely to a comparison of handwritings
which, however, the federal court held to be insufficient, the court
decreed on the 10th of July, 1880, that the appellant’s application be
rejected.
B.—In an application dated March 27, 1888, Lawyer Haggenmacher† of Zurich renewed in the name of
Carl Heinrich Weber a demand on the government council of the canton of
Zurich for said Weber’s release from Swiss citizenship, furnishing proof
of the fact that C. H. Weber had been an actual resident of the State of
Pennsylvania since 1873; that, under the laws there in force he is
competent to transact business, and that he had acquired the rights of
citizenship of the United States of America. On the 29th of March, 1888,
the government council of the canton of Zurich referred this application
to the district council of Zurich for its own information, and for
transmission to the city council of Zurich, and to all persons otherwise
concerned, for action under article 7, abst. I, of the federal law of
1876. The district council in turn, March 31, 1888, referred the
application, in a similar sense to the city council of Zurich, which
after calling upon the guardian of C. H. Weber for a written opinion
upon the subject, raised objection in a document dated May 5, 1888, to
the sought-for release from citizenship, advancing the following
reasons, viz, that Weber had never received his guardian’s permission to
emigrate; consequently, he could not have lawfully removed his domicil
from Zurich, and is therefore, according to article 6, litt. a. of the federal law of June 3, 1876, not
entitled to the right of waiver of his Swiss citizenship. The government
council of the canton of Zurich, by decree of June 2, 1888, referred
this objection, together with the papers in the case, to the federal
court for its decision.
C.—On the 31st of July, 1888, the attorney for C. H. Weber filed with the
federal court an application, demanding that the objection raised
against the waiver of citizenship by Carl Heinrich Weber, resident in
Philadelphia, be dismissed, and that instructions be given to the proper
cantonal authorities to pronounce C. H. Weber’s release from his Zurich
state (cantonal,) and town citizenship. He (the attorney), goes on to
state that neither Weber’s near relations in Zurich, nor his guardian
there, but simply and alone the city council of Zurich, have raised
objection. But the said city council’s objection was offered too late,
inasmuch as it was not offered within the four-weeks limit provided by
art. 7, abst. I, of the federal law of June 3, 1876, and is therefore
not entitled to any further consideration. There is, moreover, no reason
presented for not granting the release applied for; the appellant
satisfies every requirement of the federal law of June 3, 1876; he has
no longer any domicil in Switzerland, has acquired citizenship in the
United States, and is also competent to transact business under the laws
of the State in which he resides. It is not correct that the appellant
did not receive-his guardian’s consent to emigrate.
He gave his then guardian, from his then place of residence, Munich,
notice of his intention to emigrate, and the latter offered no
opposition, but, on the contrary sent him, shortly before his departure,
400 francs, to enable him to provide himself with new clothing. Shortly
after his arrival at Philadelphia, the appellant informed his guardian
of his address, but received no answer thereto; he also, though at
intervals,
[Page 690]
corresponded with
his relatives at Hirslanden.* At no time during the entire period of his stay in
Philadelphia was he summoned by his guardian, by the orphan’s court or
by any other authority whatsoever, to remove his domicile to his home
township (Heimath-Gemeinde) or to any other place
whatsoever. This certainly implies the guardian’s consent to his being
where he at that time was. In the former proceedings relative to the
appellant’s release from Swiss citizenship, ground was never taken that
he had emigrated without his guardian’s consent, and his present
guardian sent him, by consent of the orphans’ court, a sum of money he
had asked for, for the purpose of making a transient visit to his former
home.
D.—The government council of the canton of Zurich transmitted the view
taken by the city council of Zurich of this complaint. The city council
states as follows: The appellant’s guardian, in his report to the city
council, advised the dismissal of the proceedings for release; the views
of Weber’s relatives had not been consulted. But the guardianship
authorities and the guardian are entitled to raise objections, even
without assistance from the relatives. Article 7 of the federal law of
June 3, 1876, couples no menace with the fixing of a period of four
weeks for the filing of objections. It would therefore be inadmissible
to declare inoperative an objection filed after the expiration of such
period, and all the more so, as the right to file objections serves
simply for the protection of the public interests.
The fixing of a limit of time is therefore simply a rule of order. The
consent of not only the guardian, but also of the guardianship
authorities (the orphans’ court), if not, indeed, that of the district
council, was requisite to a lawful change of domicile by the ward. What
communications the appellant made to his former guardian can not now be
ascertained, as said former guardian is deceased. It is certain,
however, that the orphans’ court has at no time been approached for a
consent to a change of domicile. If said orphans’ court never summoned
the appellant to return to Zurich, such fact is entirely unimportant,
for the reason that the said court could not have compelled such return;
moreover, indeed, Weber himself states that the orphans’ court allowed
the money necessary for his return journey to be sent to him.
The federal court takes into consideration the following:
- I.
- The city council of Zurich is undoubtedly entitled to present
objections to the release of C. H. Weber, a citizen of the town
of Zurich, from his citizenship. Its objections, moreover, can
not be ruled out on account of delay in filing them. It is true
that such objections did not ensue within a period of four
weeks, reckoned from the time when the application for release
was communicated to the city council. But the limit provided in
article 7 of the federal law of June 3, 1876, is not one
(according to the beginning, duration and end of a limit exactly
prescribed by law) to the neglect of which the law would attach
preclusive consequences. The law rather leaves the fixing of the
limit of time for filing objections in individual cases to the
cantonal governments inasmuch as it simply decrees that the
limit to be fixed shall not exceed four weeks; it does not
further prescribe that the neglect to observe such fixed limit
shall result in rendering the right of objection inoperative. In
this position of the case the limit is simply to be regarded as
a limit of order, and this all the more since the question
whether the legal conditions incident to a waiver of Swiss
citizenship exist, must in any event be examined into officially
by the authorities.
- II.
- It is established that the appellant has, in point of fact,
resided in Philadelphia since 1873; that under the laws there in
force he is competent to transact business, and that he has
acquired United States citizenship. The city council of Zurich
contests his competence to waive his Swiss citizenship, simply
because he, as a ward, without consent from the guardianship
authorities, could not legally change his domicile. Now, as a
question of principle, it is correct that a ward can not
lawfully change his domicile without his guardian’s consent. On
the other hand, it is not requisite that such a consent be
expressly outspoken; it can rather occur tacitly, and thus be
concluded by actual circumstances. If, especially, both the
guardian and the guardianship authorities simply allow a change
of the ward’s residence, they being cognizant of it, to take
place without their protesting against it, and calling upon the
ward to return, it is at all events, as a rule, to be presumed
that they have consented to said ward’s removal to his new place
of residence. So far as the guardianship authorities consider
the change of residence as prejudicial to the ward’s interests,
it is certainly their duty, where possible to prevent it or
thwart it. If, therefore, they remain silent in regard to a
change in his place of residence by the ward, they being
cognizant of the same, it is certainly to be regularly presumed
that such change takes place because they have no opposition to
offer against it. The circumstances that in a case of emigration
to a foreign country, especially to those beyond the sea, the
guardianship authorities are not in position directly to compel
the ward to return does not affect the question at all. Even
though the said authorities may lack any power of coercion over
the person of the ward, they can yet ultimately bring an
influence to bear upon his course, as for instance by
[Page 691]
granting him the
enjoyment of his fortune only in so far as he complies with his
guardian’s instructions in regard to his choice of his place of
residence. Now, in the present case, it may safely he presumed
that the guardianship authorities consented to the appellants
emigrating; at no time did either guardian or guardianship
authorities, notwithstanding that the ward’s place of sojourn
was known to them, express, in any way whatever, their
disapproval of his emigrating: in particular, during the former
proceedings for the appellants release from citizenship it was
not even alluded, to from any quarter, that said appellant had
emigrated in an unlawful way, without his guardian’s consent;
the appellant’s right of waiver of his Swiss citizenship was at
that time contested on entirely different grounds.
The federal court has accordingly recognized as follows:
- (1)
- The objections of the city council of Zurich against the
release of Carl Heinrich Weber of Zurich, born 1845, from his
right of citizenship, are dismissed, and the government council
of the canton of Zurich is requested to confer upon the
appellant a release from his Swiss cantonal and town
citizenship.
- (2)
- The fees, amounting toll francs for drawing up this decision,
and the charges for postage, are to be charged to the
objector.
- (3)
- This decision is to be communicated in writing to the
appellant, as well as to the government council of the canton of
Zurich for its own information and for transmission to the city
council of Zurich.
Lausanne, October 19, 1888.
In the name of the Swiss federal court,
[
seal.]
A.
Rapp, President.
Roth, Court
Clerk.
A true translation and copy.
[
seal.]
George L. Catlin,
United States
Consul.
