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GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Interpretation of Section 2(a) (3), Chapter 2, Civil Regulations

with the Force and Effect of Law in Guam dealing with special

licenses. The following opinion was given on February 13, 1952, in reply to a letter of inquiry dated February 5, 1952, from a local attorney. The question is whether a local agent of a foreign corporation insurance company is required to obtain a business license.

It is the interpretation of this office that the word “or” when used in subject section, “any insurance company or its agent”, was intended to mean “and/or” rather than to give a mere alternative meaning. The purpose of the entire chapter reflects this intent in that it provides for business licenses for these persons who conduct or engage in certain types of businesses in Guam; therefore, the decision as to whether a certain person is required to obtain a business license rests on whether or not he is engaged in business, or is deemed to be "doing business”, in Guam within the meaning of that phrase.

If the insurance company itself was "doing business" in Guam within such meaning it would be required to obtain the proper license; if an agent of an insurance company were of such independent status that he would be deemed to be “doing business” in Guam he also would be required to obtain the proper business license. It is thus conceivable under varying fact situations that, (1) both the parent company and its agent would be required to obtain separate business licenses, (2) that only the parent company would be subject to the licensing requirement, or (3) that only the agent would be required to obtain such business license.

This interpretation must be applied to specific facts in order to resolve a particular case.

RUSSELL L. STEVENS,

Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Licensing of more than one activity owned and operated by a single

entity.

The following opinion was given on March 5, 1952, in reply to an inquiry dated January 10, 1952, relating to the possibility of issuing a single license to cover related enterprises.

If a single firm owns and conducts various operations, all of which come within the purview of the requirements for a single license, the various operations need not be licensed separately. The single firm may obtain one license for such operations.

On the basis of the foregoing, and the facts outlined in the letter of inquiry, it is my opinion that a single entity which owns and operates separate operations which ordinarily come within the purview of a first class trader's license, may operate all of such branches under a single license. If any of the operations require special licenses under Chapter 2 of the Civil Regulations with the Force and Effect of Law in Guam, such license must be obtained.

RUSSELL L. STEVENS,

Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Legality of purchase of liquor free of tax by Employees Service

Association.

The following opinion was given to the Governor on March 6, 1952, following an investigation by the Department of Finance and the Attorney General.

Camp Asan Club is not now, nor has it been for several months, buy. ing liquor from the Pacific Fleet Wine Mess for the purpose of resale to its civilian employee members. It appears that the Pacific Fleet Wine Mess has refused to sell liquor to this organization due to the fact that it is not an instrumentality, agency or concessionaire of, or in any way controlled by, the Navy Department.

However, the Camp Asan Club on being denied this privilege by the Pacific Fleet Wine Mess applied to the Andersen Air Force Base Mess for, and was granted, permission to purchase their liquor supplies from that source. Not only has the subject club availed themselves of this source of supply, but the Andersen Air Force Base Mess provides delivery service to the club in military vehicles. This appears to be without the jurisdiction of the government of Guam, and is a decision to be controlled by Air Force rules and regulations.

Under the present government of Guam liquor Tax Law (Public Law 5, Ninth Guam Congress), liquor brought into Guam, and sold, in this manner is tax exempt. The recommendations for the revision of the tax laws of the government of Guam contain provisions whereby the same tax would be levied against transactions of this nature as the private enterprises are required to pay. Such a revision seems necessary to allow private enterprises to compete on equal terms for this business.

In summary, the purchase of liquor from military sources by the Camp Asan Club is legal and such transactions are tax free under our present law.

RUSSELL L. STEVENS,

Attorney General. GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Importation into Guam of Philippine raw sugar, and applicable of

processing tax on same. The following opinion was given to the Director of Commerce on March 20, 1952, in response to questions propounded in a letter dated December 29, 1951, from Associated Finance Company, Inc.

The first question was whether raw sugar coming from the Philippines to Guam will be applied to the sugar allocation under the Philippine/ American Trade Act. The act referred to is the Philippine Trade Act of 1946, and provides therein that the term “United States” shall mean the States, the District of Columbia, the territories of Alaska and Hawaii, and Puerto Rico. Therefore, in providing a sugar allocation quota for "entry into the United States” such quota does not apply to the entry of sugar from the Philippines into Guam.

The second question was whether sugar processed in Guam and exported to the continental United States is subject to the processing tax under the Sugar Act of 1937. This is a question that cannot be answered by the government of Guam inasmuch as it concerns imports into the customs perimeter of the United States. Section 27 of the Organic Act of Guam provides that those articles which are the growth, product, or manufacture of Guam shall be entered at the several ports of entry free of duty; if processed sugar falls within one of the classifications of this section it then would come within the duty free provision. The final decision of whether or not an article falls within one of these classifications can only be made by the Bureau of Customs, United States Treasury Department.

RUSSELL L. STEVENS,

Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Interpretation of the word "residence" as used in Public Law 34,

Tenth Guam Congress (Elections Code).

The following opinion was given on May 1, 1952, in reply to the oral request of the Governor.

Section 29, Public Law 34, Tenth Guam Congress provides, in part: "Every person ... who has established his residence in Guam for a period of at least two years immediately preceding the date set for such election ... is entitled to vote at any general election held within the territory of Guam ..." (bold face supplied).

I

Section 183, Public Law 34, defines the word residence as follows: DEFINITION OF RESIDENCE. That place is the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.

This definition turns on the meaning of the word "habitation", which in turn has been defined to mean occupancy, place of abode, settled dwelling and residence. Therefore, in order to gain a working definition, we must turn to the decisions of the courts.

The United States Supreme Court has construed the word “residence" as implying an established abode, fixed permanently for a time, for business or other purposes, although there may be an intent existing all the while to return to the true domicile. The transient business of a person for a time at a place does not make him a "resident" while there; that something more is necessary to entitle him to that character. There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes,—to constitute a "residence" within the legal meaning of that term. Penfield v. Chesapeake O. & W. R. Co. 134 U. S. 351, 10 S. Ct. 566.

Two factors are required for the establishment of residence. These are,

(1) the act of removing to a place, and
(2) the intent to make that place the “residence", as that word is de-

fined above. The matter of Proof of the former is simple; however, as to the latter, intent must be deduced from the overt acts of the person, his statments to others as to such intent, and his own testimony. Residence must be determined on a case to case basis, and not by the interjection of blanket administrative rulings.

It is to be noted at this point that the definition as set forth at Section 7of the Election Manual, approved October 20, 1950, is invalid and should be stricken. Section 32 of the aforementioned Public Law 34”, provides that the Election Commissioner shall promulgate a manual of ad. ministrative procedures. The Commissioner is not delegated the authority to make rules and regulations affecting substantive rights of persons. An administrative body may not make regulations beyond the scope of the authority delegated by the creating statute. Inter-State Commerce Commission v. Cincinnati, N. O. & T. P. Ry. Co. et al, 167 U. S. 479; 17 S. Ct. 896.

Section 184 of the aforementioned Elections Code provides that a person does not gain or lose residence by reason of his presence or absence from a place while employed in the service of the United States or any Federal agency, or of this territory. This has been administratively interpreted in Guam to mean that while one is employed by one of these agencies, he is precluded from attaining residence in Guam. The matter of employment does not alone decide the question of residence, but is merely evidence thereof. If a person comes to Guam with the intent to make it his residence (as defined above) and in fact does take up his residence here, the mere fact that he is employed by the Federal or territorial government or by a Government contractor in itself does not deny him the right to vote.

1. 2.

See Appendix 1
See Appendix 2

It follows that anyone maintaining voting residence in a jurisdiction other than Guam cannot attain residence for voting purposes in this territory.

Members of the military, generally speaking, do not attain voting residence in jurisdictions in which their stations are situated. However, there are certain exceptions to this rule, the most common example being where a service man marries or otherwise enters home life and establishes a home off the base, with the intent to make such home his resi. dence.

Objections are oftentimes encountered when the voting right is denied that the person seeking registration is a “taxpayer" and that he "helps pay for the government and that taxation without representation is tyranny.” In the field of American Jurisprudence there always have been vast differences in residence for tax purposes and residence for voting purposes. Taxation is based on three factors, namely (1) source of income, (2) residence, which for tax purposes usually means the situs of property, rather than of the person, or (3) citizenship. The only Guam tax based on personal residence in this territory, is the Poll Tax. See Chapter 17, Civil Regulations with the Force and Effect of Law. All persons required to pay this tax, by the very terms of Chapter 36, are possessed of the requisites for voting residence.

II

The question also has arisen of the voting rights of persons, otherwise qualified, whose place of residence is on a Federal reservation within this territory. It is well-settled American law that the resolution of this question turns on whether or not the United States has exercised "exclusive legislation” over the subject realty. Where such exclusive legislation has been exercised, one residing on such reservations cannot be a resident for voting purposes of the state or territory in which the reservation is situated. State ex rel. Parker v. Corcoran, 155 Kan. 117, 128 P. 2d 999, 142 A.L.R. 423; Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946; Opinion of the Justices, 42 Mass. 580, 1 Metc. 580; Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397; in Re Town of Highlands, 22 N.Y.S. 137, 48 N.Y. St. Rep. 795; McMahon v. Polk, 10 S.D. 296, 297, 73 N.W. 77, 47 L.R.A. 830; State ex rel. v. Willett, 117 Ten. 334, 97 S.W. 299, 302.

In recent years there have been many instances where the United States has acquired rights in land in a tract of real property situated in a state or territory for certain uses of the Federal Government without exercising exclusive legislation over the land taken. Examples of this are set forth in State ex rel. Parker v. Corcoran, supra, and Johnson v. Morrill, a California case reported at 126 P. 2d 873. In both cases the land was acquired by the Federal Government under leasehold condemnation proceedings, and the courts held that the United States had not exercised exclusive legislation, and, therefore, that the bona fide residents living on such land were not deprived of voting rights in the state elections.

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