GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Review of Alcoholic Beverage Control Board decision.

The following opinion was given to the Chairman, A.B.C. Board, on December 20, 1951, in reply to his letter of November 21, 1951. The question was the method of review of A.B.C. Board decisions.

Section 38 of the Administrative Adjudication Act, which applied by its terms to the ABC Act, provides as follows:

Sec. 38. Method of decision in contested cases.

(a) If a contested case is heard before an agency, the hearing officer who presided at the hearing shall be present during the consideration of the case and if requested, shall assist and advise the agency. Where a contested case is heard before an agency, any member who did not hear the evidence shall not vote on the decision.

Section 43 of the Administrative Adjudication Act provides that the agency may order a reconsideration of all or part of the case on its own motion or on petition of any party.

The letter indicates the desire of the Board to have the case herein "tried by higher authority, preferably the civil court."

Sections 48 and 49 of the ABC Act provide the only method of judicial review of ABC Board decisions, i.e., a writ of mandate issued by the Island Court. Such a writ is not practical in this case. The Board makes its own decisions, and it would be meaningless to petition the court for a writ to compel the Board of carry out the function it has already completed.

The Board might feel reconsideration of the case necessary and desirable. Should the Board so decide, a simple order entered in the record of the case will be sufficient to reopen the case. The Board should then proceed in accordance with the provisions of law controlling reconsideration.

Your letter indicates that "The Board voted to not accept the decision of Mr. Perez." The recommendation of the hearing officer simply is one for the Board's consideration, which the Board may accept or reject. The Board is the sole judge of the hearing and renders its own decision. The only function of the hearing officer is to render advice and assistance to the Board.

It is my recommendation that since the Board imposed a penalty of two days suspension of license, the matter be considered closed. If Bamboo Enterprises so desires, they may file with the Island Court a petition for a writ of mandate.

RUSSELL L. STEVENS,

Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Dual employment of teachers and other government employees.

The following opinion was given to the Director of Education on December 20, 1951, in reply to a request for legal expression on problems involved in dual employment of government employees.

There are two basic questions arising out of the problem of dual employment of Government employees.

1. An employee holding either two part-time jobs, or a full and a part-time job, both of which are with the government of Guam. 2. An employee holding a part or full-time job with the government of Guam and a part or full-time job outside of the government of Guam.

Section 15(e) Public Law 8, First Guam Legislature, hereinafter called the "Personnel Law," states:

"No official or employee of the government of Guam shall conduct or engage in any business or trade which, in its best judgment, the Personnel Board may fine prejudicial to the best interest of the public." This places the responsibility of the control of situation arising under number "2" above directly with the Personnel Board. This is not a prohibition against such double employment but rather sets forth the criteria by which the Personnel Board may judge each individual case. Therefore it is suggested that supervisors or department heads when confronted with a problem of this nature involving one of his employees may either

(a) authorize such double employment if he feels certain in his own mind that it is not prejudicial to the best interest of the public, or (b) in case there is doubt as to the propriety of such double employment he may take the matter up with the Personnel Board for its decision.

Section 8 of the Personnel Law provides that the Personnel Director shall prepare for the Personnel Board such personnel rules as necessary and proper, covering, among other things, hours of work and such other matters as are essential to the administration of the employees. In pursuance of this section of the Law the Personnel Director has issued the "Government of Guam Personnel Rules and Regulations", dated September 25, 1951. Section 6, paragraph 7 of the said rules and regulations provides:

"The prescribed rates of pay include payment for all work performed in those classes even though work may be performed in more than one department. Each department may pay its appropriate share for such service but the total compensation received by the employee shall not exceed the prescribed maximum rate for the class." This provision clarifies number "1" above as regards to an employee working for two different departments of the Government whether he holds two part-time positions or a full and a part-time job. It is further provided in Section 6, paragraph 9, that overtime work and compensation

therefor is to be allowed only in exceptional cases and compensation therefor must have the approval of the Director of Personnel. It is the opinion of this office that a full-time employee of the Government who wishes to secure part-time employment with the Government after his regular working hours would be regulated by this section covering overtime work and it would require the approval of the Personnel Director.

Section 8, paragraph 1, of the Personnel Rules and Regulations provides further that any full-time employee of the government of Guam who undertakes regular employment outside of the Government shall so notify his department head who shall determine whether or not it interferes with his work as a Government employee. This section is a restatement and clarification of Section 15(e) of the Personnel Law quoted above.

In summary it can be stated that an employee of the government of Guam who wishes to accept other employment in addition thereto is required to secure permission from his supervisor, department head, the Personnel Director or the Personnel Board.

RUSSELL L. STEVENS,
Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Clarification of Public Law 24, Ninth Guam Congress, approved January 6, 1950.

The following opinion was given to the Acting Director of Finance on December 26, 1951, in reply to a request concerning subject clarification.

The question is whether or not refund of import taxes collected under the Internal Revenue Tax Law of Guam should be made under Public Law 24 on items to be consumed on board ship during a voyage from Guam to other ports.

Public Law 24 amends the Internal Revenue Tax Law by the addition of a paragraph which reads in part: “upon the exportation from Guam ... there shall be allowed a tax refund equal to that amount of internal revenue tax found to have been paid on the article or material exported." The customs laws of the United States provides for a similar refund, using the term "drawback", by stating in Title 19, U.S.C.A. Section 1313 (a) "upon the exportation of articles manufactured or produced in the United States with the use of imported merchandise, the full amount of the duties paid upon the merchandise so used shall be refunded as drawbacks..." The language used in the two acts is similar; in both the interpretation depends on the connotation to be given the word “exportation." Swan and Finch Company vs. United States, 23 S. Ct. 702 specifically decides the present problem with regard to the Federal laws quoted above. The court in its decision stated that “export” or “exportation" used in the constitution and the laws of the United States means the transpor

tation of goods from this to a foreign country; that is to say that exportation would not only constitute the severance from the mass of things belonging to this country but also includes an intention to unite them to the mass of things belonging to some foreign country. On this basis the court held that the drawback provided by law would not be allowed for goods placed on board a vessel bound for a foreign port, but to be used and consumed on board the vessel during this voyage, and in fact so used and consumed.

It is therefore the opinion of this office that the refund of the import tax as provided by Public Law 24 is not to be allowed in the case of merchandise placed on board a vessel bound for another port but to be used and consumed aboard such vessel while en route.

RUSSELL L. STEVENS,

Attorney General.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Requirement of business license as a condition precedent to doing interstate business.

The following opinion was given on December 31, 1951, in reply to a letter from R.C.A. Communications, Inc. and its attorneys. The question involved is whether an annual local license may be required as a condition precedent to R.C.A.'s engaging in interstate Transmission of messages.

It is my opinion that the government of Guam legally cannot require RCA to obtain a local license. This opinion is based upon the law as applied to the facts related by its attorneys, that the activities of RCA on Guam are confined to transmission and receipt of messages between Guam and other points of the world, and that RCA conducts no local business in Guam.

Transmission of messages is commerce within the meaning of the United States Constitution. Fisher's Blend Station v. Tax Commissioner, 297 U. S. 650, 80 L. ed. 956, 56 S. Ct. 608; Federal Radio Commission v. Nelson Bros. Bond and Mortg. Co., 289 U.S. 266, 77 L. ed. 1166, 53 S. Ct. 627, 89 A.L.R. 406.

The Congress of the United States is empowered to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Constitution of the United States, Article 1, Section 8, Clause 2.

Jurisdiction under this constitutional provision is exclusively within the Congress of the United States. Madden v. Truckaway Corporation, D. C. Minn. 1942, 46 F. Supp. 702; Railroad Commission v. Worthington, Ohio 1912, 32 S. Ct. 653, 255 U. S. 101, 56 L. Ed. 1004.

Local governments may affect interstate commerce indirectly, but only insofar as such action provides for the security of persons and pro

tection of property within its jurisdiction, or merely has an incidently affect upon interstate or foreign commerce. Robbins v. Shelby County Taxing District, 120 U. S. 493, 30 L. ed. 694, 7 S. Ct. 592 (1887).

Local police regulations cannot go so far as to deny the right to engage in interstate commerce, or to treat it as a local privilege, and prohibit its exercise in the absence of a local license. Platt v. New York, 232 US 35, 58 L. ed. 492, 34 S. Ct. 209; Barrett v. New York, 232, US 14, 58 L. ed. 483, 34 S. Ct. 203; Postal Teleg. Cable Co. v. Taylor, 192 US 64, 48 L. ed. 342, 24 S. Ct. 208; Postal Teleg. Cable Co. v. New Hope, 192 US 55, 48 L. ed. 338, 24 S. Ct. 204. Nor can a state make the payment of a license tax or the securing of a license a condition to carrying on interstate commerce and cannot tax the privilege of carrying on interstate business, 52 A.L.R. 534, s. 115 A.L.R. 1105; 126 A.L.R. 590; 60 L.R.A. 649, 650.

It may be stated as a general proposition that the commerce clause of the Constitution does not extend to territories, insofar as “interstate commerce" is concerned, since territories are not states. Lugo v. Suazo, CCA Puerto Rico 1932, 59 F. 2d. 386.

However, this rule is altered when Congress specifically provides that the territories are to be affected by the clause in question. InterIsland Steam Navigation Co. v. Territory of Hawaii, 305 U.S. 306, 59 S. Ct. 202, 83 L. ed. 189 (1938).

The Congress of the United States, acting pursuant to its authority under the Constitution, has preempted the field of communications in all the states, territories and possessions of the United States. See 47 U.S.C.A. Title 47 "Telegraphs, Telephones, and Radio-Telegraphs". 47 U.S.C.A. Section 153 (e) provides as follows:

(e) "Interstate communication" or "interstate transmission" means communication or transmission (1) from any State, Territory, or possession of the United States (other than the Canal Zone), or the District of Columbia, to any other State, Territory, or possession of the United States (other than the Canal Zone), or the District of Columbia, (2) from or to the United States to or from the Canal Zone, insofar as such communication or transmission takes place within the United States, or (3) between points within the United States but through a foreign country; but shall not include wire communication between points within the same State, Territory, or possession of the United States, or the District of Columbia, through any place outside thereof, if such communication is regulated by a State commission.

The President's Commission on the applicability of Federal Laws to Guam, in Item 174, page 24 of its report, stated its opinion that Title 47 aforesaid is "applicable to Guam on August 1, 1950, (and) should remain applicable".

In a decision under the law set forth in Title 47 Supra, the District Court for the Southern District of Florida stated in the case of Tampa Times Co. v. Burnett, 45 F. Supp. 166, 167, as follows:

Two: That the plaintiff in conducting its radio station WDAE is engaged exclusively in interstate commerce, and that the United States Government has, by the Communications Act of 1934, preempted the field of radio broadcasting and communications and has exercised