Mandamus prosecuted by plaintiff in error as petitioner against defendants in error, respondents, as and composing the board of election commissioners of the city and county of San Francisco, to compel her registration as a qualified voter of the city and county, in the appropriate precinct therein.
An alternative writ was issued, but a permanent writ was denied upon demurrer to the petition.
The facts are not in dispute and are stated by Mr. Justice Shaw, who delivered the opinion of the court, as follows:
'The plaintiff was born and ever since has resided in the state of California. On August 14, 1909, being then a resident and citizen of this state and of the United States, she was lawfully married to Gordon Mackenzie, a native and subject of the kingdom of Great Britain. He had resided in California prior to that time, still resides here, and it is his intention to make this state his permanent residence. He has not become naturalized as a citizen of the United States and it does not appear that he intends to do so. Ever since their marriage the plaintiff and her husband have lived together as husband and wife. On January 22, 1913, she applied to the defendants to be registered as a voter. She was then over the age of twenty-one years and had resided in San Francisco for more than ninety days. Registration was refused to her on the ground that, by reason of her marriage to Gordon Mackenzie, a subject of Great Britain, she thereupon took the nationality of her husband and ceased to be a citizen of the United States.' [165 Cal. 778, L.R.A.--, --, 134 Pac. 713, Ann. Cas. 1915B, 261.]
Plaintiff in error claims a right as a voter of the state under its Constitution and the Constitution of the United States.
The Constitution of the state gives the privilege of suffrage to 'every native citizen of the United States,' and it is contended that under the Constitution of the United States every person born in the United States is a citizen thereof. The latter must be conceded, and if plaintiff has not lost her citizenship by her marriage, she has the qualification of a voter prescribed by the Constitution of the state of California. The question then is. Did she cease to be a citizen by her marriage?
On March 2, 1907, that is, prior to the marriage of plaintiff in error, Congress enacted a statute the 3d section of which provides: 'That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United states, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.' [34 Stat. at L. 1228, chap. 2534, Comp. Stat. 1913, § 3960.]
Plaintiff contends that 'such legislation, if intended to apply to her, is beyond the authority of Congress.'
Questions of construction and power are, therefore, presented. Upon the construction of the act it is urged that it was not the intention to deprive an American-born woman, remaining within the jurisdiction of the United States, of her citizenship by reason of her marriage to a resident foreigner. The contention is attempted to be based upon the history of the act and upon the report of the committee, upon which, it is said, the legislation was enacted. Both history and report show, it is asserted, 'that the intention of Congress was solely to legislate concerning the status of citizens abroad and the questions arising by reason thereof.'
Does the act invite or permit such assistance? Its declaration is general, 'that any American woman who marries a foreigner shall take the nationality of her husband.' There is no limitation of place; there is no limitation of effect, the marital relation having been constituted and continuing. For its termination there is provision, and explicit provision. At its termination she may resume her American citizenship if in the United States by simply remaining therein; if abroad, by returning to the United States, or, within one year, registering as an American citizen. The act is therefore explicit and circumstantial. It would transcend judicial power to insert limitations or conditions upon disputable considerations of reasons which impelled the law, or of conditions to which it might be conjectured it was addressed and intended to accommodate.