While we cannot agree with Mark Twain that “The government’s work is always conspicuous for excellence, solidity, thoroughness, neatness”, in the instant case, at least, the Federal power has been exerted with justice and with success.

As is pointed out in an article appearing in the Stanford Law Review of May, 1955:

That remedy, infra, has been unsuccessfully invoked by the appellant in the instant case.

1. Statement of the Case

The appellant originally filed his complaint through his alleged father, Louie Foo, in the Court below, asking for a declaratory judgment under Section 503 of the Nationality Act of 1940 ( 8 U.S.C.A. § 903 , Edition of 1942). The complaint was dismissed on motion. When the case was appealed, this Court reversed, with the comment that the appellant and others had “the right to show by amendment or supplemental pleading their authorization of their next friend to apply for travel documents and to initiate the litigation or the right to initiate it themselves, as they may be advised.” Joong Tung Yeau v. Dulles (Louie Hoy Gay v. Dulles), 9 Cir., 1955, 225 F.2d 854, 855 .

It is worthy of note that the original complaint was filed on December 22, 1952, three days before the effective date of the Immigration and Nationality Act of June 27, 1952 ( 8 U.S.C.A. §§ 1101-1503 ; see note, 8 U.S.C.A. page 155 [1953 Edition]). The later act is much more restrictive. For example, as pointed out in the Stanford Law Review article from which we have already quoted, if a certain type of alien “is not within the United States, he is precluded from having his citizenship determined in a declaratory judgment action. Moreover, he is not even eligible to apply for a certificate of identity,” etc. Under the 1940 Act, however, as we shall see, the alien might have instituted such an action “regardless of whether he [was] within the United States or abroad”.

It should be noted that the Act of 1952 contains an elaborate saving clause that would specifically make the 1940 Act applicable to the instant case, even though the amended complaint was filed long after the effective date of the 1952 statute.

In the instant case, the appellant filed an amended complaint on January 24, 1956, thus following the suggestion of this Court, supra. The amended complaint contained the requisite allegations for this type of action, and concluded in part with the following prayer:

The appellee filed an Answer denying most of the allegations of the complaint. Oral and documentary evidence was adduced by both parties, and thereafter the District Judge rendered an opinion, filed Findings of Fact and Conclusions of Law, and on October 4, 1956, handed down a judgment, decreeing that the complaint be dismissed. From that judgment the present appeal has been taken.

2. The Applicable Statute

“Section 503 of the Nationality Act of 1940 ( 8 U.S.C.A. § 903 , 1942 Edition) was as follows:

3. The Lower Court’s Findings Have Support in the Record.

(a) Foo’s Fictitious Fatherhood

Louie Foo, hereafter Foo, who gave his age as 72 years and his birthplace as Portland, Oregon, testified that in 1907 he was married to Ng Shee in Hong Me Village, Toishan, Canton, China, and that the appellant was his son by that marriage. He said that he arrived in China in February, 1907, and was married the following month. He could not remember the exact month in which he returned to the United States, but he did testify that it was some time in 1908, and that his son was born on July 5 of that year.

In 1931 Foo went back to China, and lived in the same house with his son, according to his testimony. Between 1908 and 1921, he sent the boy money — “sometimes * * * hundred, sometime two hundred, sometime five hundred for family expense.”

A second child, a girl, was born to Foo and his wife while he was in China on a second visit, from 1921 to 1924, he said, adding that after he returned to the United States he continued to send money to his family. Foo has not been back in China since 1924, but has been sending money to his family “every other month, sometime two or three months, sometimes I haven’t got no money, I can’t send any.”

A letter purporting to be from the appellant to Foo, dated October 5, 1929, shows the appellant asking for money from his alleged father. A letter that Foo said was from the appellant, dated February 23, 1941, thanks Foo for the “$100 you sent me.”

Foo testified that he sent $3,000 to his wife to repair his house, and a letter that he said was from his wife informed him that his check had been received. The alleged letter from his wife was put into evidence, but was not translated. It was dated July 26, 1952.

The witness identified a photograph alleged to be that of the appellant as that of his son when the latter was 16 or 18 years old.

A blood test made of the appellant in Hong Kong indicated that his blood type was “MN”, while that of Ng Shee, described as his “alleged mother”, was N. The doctor’s written conclusion was as follows:

A blood test made of the alleged father, Foo, in Portland, Oregon, showed his Type to be “M”.

Robert W. Schmeer, 84 years old, a member of the Schmeer Agency and former vice president of the United States National Bank, both presumably of Portland, testified that he had known Foo for nearly 50 years, and that the latter had told him “many times” that he had a wife and boy in China. Elsewhere in his testimony, Schmeer testified that Foo “was going over to see his wife and sons”.

Robert C. Kneeland, a certified public accountant, said on the stand that he had known Foo for more than 20 years, and had prepared Foo’s income tax statements. The witness stated that at least ten years previously Foo had spoken of having a son.

The appellee introduced the Immigration File, Exhibit 14, “solely for the purpose of impeachment”, according to the District Court’s ruling. Such use of that document was proper. In Wong Ken Foon v. Brownell, 9 Cir., 1955, 218 F.2d 444, 446 , Judge Stephens said:

The Immigration File reveals that on two separate occasions Foo swore that he had two sons only, and on one of those occasions he specifically denied having any daughters. Let us examine the record meticulously on this point.

In an “Application for Immigration Visa (Nonquota)”, dated Hong Kong, November 3, 1924, Foo listed two sons as being his only children, as follows:

In a statement captioned “Chinese Landed Direct from Steamer on Identification”, given at Seattle, Washington, and dated November 30, 1924, it was claimed that he indicated that he had two sons and two daughters, although the record is somewhat ambiguous on this point.

In a sworn statement made December 4, 1924, before Examining Inspector G. H. Mangels of the Immigration Service at Seattle, Foo was asked the following questions and made the following answers :

Whatever ambiguity there may exist in Foo’s statement captioned “Chinese Landed Direct from Steamer Identification”, of November 30, 1924, there is no ambiguity in his replies to questions regarding his children which were asked of him in Hong Kong on November 3, 1924, and in Seattle on December 4, 1923.

On those two latter occasions, Foo emphasized that he had no children other than the two sons, and in his statement of November 3, 1924, he gave their full names and place of residence in China, both sons residing in the same village. Neither the Vice Consul in Hong Kong nor the examining inspector at Seattle, or their respective interpreters, could have “dreamed up” the names, address and the sex of these two alleged children.

But when he was on the witness stand in the Court below and was confronted with the foregoing statements about his two sons, said:

In other words, in the language of the day, everybody was out of step except Johnny!

A man might make a mistake regarding the layout of the streets in his village, or whether there were one or two mulberry trees in front of his boyhood home; but few men are so absent-minded as to forget the sex of their own children!

Our own careful study of the record and voluminous exhibits has convinced us of the justice of the District Judge’s skeptical observation, quoted infra, regarding Foo’s testimony.

In his application for a passport, sworn to before the United States Vice Consul at Hong Kong on August 8, 1952, the appellant himself repeatedly stated that he was Foo’s son. The District Judge, however, did not believe such evidence, nor was he compelled to do so..

In Ly Shew v. Dulles, 9 Cir., 1954, rehearing and rehearing en banc denied, 1955, 219 F.2d 413, 416 , Judge Mathews said:

Our own independent and meticulous study of the record causes us to concur in the District Judge’s statement that he could not “base a finding of citizenship upon testimony of this quality,” on the question of the appellant’s filiation.

(b) There Is Rational Basis for the Lower Court’s Finding That the Appellant H.as Failed to Prove That His Alleged Father Was a Citizen of the United States at the Time\ of the Appellant’s .Birth.

If it be assumed, solely for the sake of the argument, that the appellant has established his filiation with Foo, we must next advance to the question of whether there was substantial basis for the District Court’s finding that the appellant has failed to prove by a preponderance of evidence that, at the time of the appellant’s birth,' Foo himself was a citizen of the United States by birth or naturalization.

The appellant bases his claim to American citizenship upon five documents, which will‘be considered seriatim.

A. The passport of April 3, 1952

One of the exhibits in this case is Passport No. 598002, issued to Foo by the Department of State of the United States. Dated April 3, 1952, it.expired on April 2, 1954, and was “not valid for travel in any country except Hong Kong”.

Conceding, as he must, that “a passport has been held not to be any evidence of citizenship”, counsel for the appellant observes that “it seems odd * * * that a passport would even be considered for Louie Foo, in view of the position here taken by the appellee, i. e. that Louie Foo never did submit evidence of his birth in connection with his applications for his two trips to China,” and adds:

Neither counsel’s feelings regarding oddity nor the State Department’s “freedom” in granting passports are a substitute in this Court for lawful evidence. We therefore dismiss Point A without further discussion.

B. The Oregon “Decree for Registrar tion of Birth”

Foo was born in 1884. Sixty-one years later, on February 8, 1945, the Circuit Court of Multnomah County, Oregon, issued a “Decree for Registration of Birth,’-’ finding that Foo was born in Portland, in that County. The appellee concedes that this decree is prima facie evidence of birth. The “Abstract of Supporting Evidence” which is a part of that decree discloses the tenuous basis of fact upon which the State court’s ex parte.pronouncement was bottomed:

Foo testified regarding a fire that destroyed his store in 1946, or a year after the Oregon court handed down its decree. Some interesting cross-examination took place in connection with Foo’s losses in that fire:

It seems strange that if in 1946 Foo had a birth certificate in his trunk at the time the latter was burned up, he found it necessary the year before the fire occurred, to go before the State court and seek a delayed “Decree for Registration of Birth”!

Without further delving into the record, we can say at this point that we fully agree with the learned District Judge in his comment upon the “Abstract of Supporting Evidence” that forms part of the “Decree for Registration of Birth”:

In Mah Toi v. Brownell, 9 Cir., 1955, 219 F.2d 642, 644 , certiorari denied 1955, 350 U.S. 823 , 76 S.Ct. 49 , 100 L.Ed. 735 , we used the following language:

No useful purpose will be served to labor the point further. Suffice it to say, the dim view taken by the District Court with reference to the decree of the Oregon court was warranted by the record, and is a view that we share.

C. The Certificate of Identity

The appellant placed into evidence a “certificate of identity” issued by the Immigration Official in Charge at Seattle; on November 30, 1924. The appellant’s brief comments that “This certificate of identity entitled [the appellant] to remain in the United States and is a prima facie right of the holder to remain in the United States”. Counsel cites three deportation cases in support of his position. But the appellee specifically disclaims any “contest at present pertaining to the right of Louie Foo to remain in the United States,” but correctly observes that “The issue is whether Louie Foo was a citizen of the United States at the time of the birth of his alleged son, Louie Hoy Gay”.

D. Foo’s Registrations for the Drafts

Introduced in evidence by the appellant were two registration cards for the military draft for each of the World Wars, issued to Louie Foo. One was dated September 12, 1918, and the other April 26, 1942.

While the appellant lists these registrations in his brief, he makes no effort to point out in what respect they indicate Foo’s American citizenship. They have no evidentiary value whatsoever.

As was observed by Judge Chase in United States v. Lamothe, 2 Cir., 1945, 152 F.2d 340, 342 , not cited by counsel, “The grant of power in the Constitution to raise and support armed forces is in terms broad enough to include the compulsory service of aliens therein.”

E. Foo’s Voting Registration and His Voting in Multnomah County, Oregon

An exhibit in this case shows that Foo was registered as a voter in Multnomah County, Oregon, from April 11, 1928, to December 21, 1941.

A statement by the Registrar of Elections for the same county, dated February 8, 1956, certifies that Foo voted in the primary election of May 18,1928, and in the general election of November 6, 1928.

The appellant makes no specific comment regarding these two exhibits, but does quote from the case of Chin Wing Dong v. Clark, D.C.Wash.1948, 76 F.Supp. 648, 650, 651 , which the appellant erroneously attributes to this Court.

Chin Wing Dong is readily distinguishable on its facts from the instant case. There, the petitioner had resided in the United States from the time of his admission in 1908 until 1919. Here, the petitioner, born in China, resides in the British Crown Colony of Hong Kong. There, the petitioner’s father had been adjudicated by the United States District Court at San Francisco “to have been an American-born citizen of Chinese ancestry”. Here, the American citizenship of Foo, the appellant’s father, has never been adjudicated by a Federal court, and, as we have seen, has not been established in the instant case.

But most important of all in Chin Wing Dong, the trial judge, after listening to the petitioner’s testimony and studying the record, was satisfied that the petitioner’s claim was just:

Contrasted with this is the skepticism expressed by two of the triers of fact in the instant case — Imogene E. Ellis, the United States Vice Consul at Hong Kong, and the District Judge. The Vice Consul reported:

After listening to the appellant and his alleged mother, the Vice Consul recommended that his passport application be refused.

No less skeptical was the District Judge:

Accordingly, we are unable to say that the Court below erred in finding that the appellant “has failed to prove by a preponderance of the evidence that said Louie Foo was a citizen of the United States by birth or naturalization.”

4. Conclusion

Therefore, since we hold that there was substantial evidence to support the lower court’s findings that the appellant had failed to prove either that Foo was his father or that Foo himself was an American citizen, the judgment is

Affirmed.

. Life on the Mississippi, Chapter XXXV. . Volume 7, Number 3, page 360. . Id., Page 374. , See 8 U.S.C.A. § 003 , infra, now 8 U.S.C.A. § 1503 . . See also Lee Dong Sep v Dulles, 2 Cir, 1955, 220 F2d 264, 265. . Section. 432.280 of the Oregon Revised Statutes (1955 edition) provides: “A certified copy of'such record [of the court,. order for the registration of the birth], shall be prima facie evidence in all courts • and- places of the facts stated therein.” . See also United States ex rel. Koopowitz v. Finley, D.C.N.Y.1917, 245 F. 871, 876 ; United States v. Rumsa, 7 Cir., 1954, 212 F.2d 927, 936 , certiorari denied 1954, 348 U.S. 838 , 75 S.Ct. 36 , 99 L.Ed. 661 .