member of a political community. The Court then said, at page 166, 22 L. Ed. 627:
'* * * For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words 'subject,' 'inhabitant,' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. * * *'
In Stuart v. City of Easton, 156 U.S. 46, 15 S. Ct. 268, 39 L. Ed. 341 (1895), plaintiff was described as a 'citizen of London, England,' and defendants as Pennsylvania corporations. The Court said that federal jurisdiction '* * * confessedly depended on the alienage of plaintiff in error * * *.' (Emphasis added.) It seems to me significant that alienage was continued as a jurisdictional prerequisite even after the Judicial Code was amended in 1875 to substitute 'citizens or subjects' for 'aliens.'
Stuart was the basis for the holding in Bishop v. Averill et ux., 76 F. 386 (D.Wash.1896). There, defendants sought to remove an action commenced in the state court. Plaintiff was a citizen of Montana. Defendants had been citizens of Montana but 15 months previously had left to become permanently domiciled in Canada, where they intended to become naturalized. In rejecting jurisdiction, the court said, at page 387, referring to Stuart:
'* * * It affirmatively appears that the controversy in this case is not between citizens of different states of our own nation, and to sustain the claim of the defendants that this court has jurisdiction we must find as a fact that the defendants are citizens or subjects of a foreign state, or aliens, as I understand the supreme court in the decision above referred to. * * *
'On the evidence, also, I must hold that the court does not have jurisdiction. The defendants have, by removal from Montana, lost their citizenship in that state, and they have become residents of a foreign country, but they have not acquired the rights nor assumed the obligations of a new citizenship. * * *'
Bishop is apparently the only case precisely on the point before me. However, a good many cases have impliedly squinted in the same direction, most of which proceed on the premise that a person can be a citizen of the United States, or a citizen or subject of a foreign state, or neither, but cannot be both at the same time:
Pemberton v. Colonna, supra, where, as here, plaintiff was an American citizen domiciled in Mexico; Hammerstein v. Lyne, 200 F. 165 (W.D.Mo.1912), supra, where the defendant was an American citizen domiciled in England; Stein v. Fleischmann Co., 237 F. 679 (S.D.N.Y.1916), where the plaintiff was a naturalized American citizen residing in his native Austria; Wittmeyer Trucking Co. v. Fess Transport Ltd., 191 F.Supp. 802 (W.D.N.Y.1961), where one of the defendants was an American citizen residing in Canada; and McClanahan v. Galloway, 127 F.Supp. 929 (N.D.Cal.1955), where the defendants were American citizens who had lived in the Republic of Colombia for thirty years. See also Blair Holdings Corporation v. Rubinstein, 133 F.Supp. 496 (S.D.N.Y.1955) (stateless aliens are not within the jurisdictional statute); Medvedieff v. Cities Service Oil Co., 35 F.Supp. 999 (S.D.N.Y.1940) (same); Shoemaker v. Malaxa, 241 F.2d 129 (2d Cir., 1957) (same).
It would appear that, unfortunately, if plaintiff's present federal action is dismissed any state action will be barred by the statute of limitations. If that result should follow, I regret that I am its instrument. My determination of the law, however, can be guided only by what I think it is and not by external motives. '* * * But motives of commiseration, from whatever source they flow, must not mingle in the administration of justice. Judges, in the exercise of their functions, have frequent occasion to exclaim, 'durum valde durum, sed sic lex est.' * * *': Penhallow et al. v. Doane's, Adm'rs, 3 U.S. (Dall.) 54, 1 L. Ed. 507 (1795).
In light of my conclusion, defendant's motion to dismiss for want of jurisdiction must be granted.