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and sale of all drugs and medicines in Guam is subject to the approval and authorization and inspection of the Department of Medical Services. Therefore, whether the drugs and medicines a licensee desires to deal in are such that require the services of a licensed pharmacist is for the Head of the Department of Medical Services to pass on. However, on the advice of the Director of Medical Services, it may be said that, in general, the provisions of Paragraphs 1 and 2 of Section 337d apply to those licensees authorized to deal in what are commonly referred to as prescription drugs and medicines.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Execution of government contracts.

The following opinion was given to the Governor on November 30, 1950, by Acting Attorney General E. Edmund Binder in response to the request of the Head, Department of Records and Accounts and the Governor. The question is the proper contracting officer of the government of Guam.

It appears from his memorandum that the Head of Records and ACcounts has interpreted Section 22 of Chapter 43 of the Civil Regulations With the Force and Effect of Law in Guam as designating the Head of that Department the contracting officer for the government of Guam.

I cannot concur with this interpretation of that Section for several reasons.

First, the Section provides that the Governor will sign all contracts. This provision negatives any possible interpretation that the Head of Records and Accounts is required to sign all or any contracts on behalf of the Government.

Second, the provision requiring that all contracts shall be prepared by that Department is merely of an administrative nature and refers to the mechanical and clerical task of securing data, drafting the instruments and processing the same.

Third, this interpretation if followed would have the effect of restricting the Governor's powers to utilize the technical aid and assistance of other departments of the Executive arm of the Government in the preparation of contracts.

Fourth, the obvious purpose of this section, when read in conjunction with the balance of the chapter, is to insure that there will be coordination, within the Government, of fiscal information for budgetary and planning purposes.

It is my opinion that this section is merely of an administrative nature and therefore cannot be interpreted as limiting the delegation by the Governor of the task of preparing contracts, to any section of the executive arm of the Government when deemed desirable.

Further it is my opinion that in the sense used in this section execution means, the signing of the contract on behalf of the Government; which is explicitly delegated to the Governor.

In connection with this it is likewise my opinion that the Governor possesses the right to delegate to members of his staff the purely ministerial duty of signing approved contracts at his direction.

In actual practice this has been done in two instances. The Director of Personnel and the Head of the Office of Land Management have been authorized to sign on behalf of the Governor, contracts within their special spheres, these contracts, which are standard in form, having been previously approved by the Governor.

From a practical point of view there is merit in routing to Records and Accounts for their information all contracts and fiscal coordination will of course be necessary when the Government is assuming a liability.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion

SUBJECT: Computation of tax on soft drinks pursuant to Public Law 5, Ninth

Guam Congress, approved January 7, 1949. The following opinion was given to the Commissioner of Taxes on April 2, 1951, by Acting Attorney General E. Edmund Binder in response to a request for subject opinion. The pertinent provisions of Public Law 5 supra, are as follows:

“1. An internal revenue tax will be collected on the following items, as follows:

(a) Soft drinks manufactured on Guam and/or imported into Guam, will be taxed at the rate of 1 cent per each 12 fluid ounces or fraction thereof."

It should be noted that the tax imposed by the above quoted provisions of law is applicable to units of 12 fluid ounces or less. I find no provision in said Public Law 5 which establishes any other standard of measurement in computing said tax. It is apparent, however, that the tax was not intended to be applied on the basis of the number of 12 ounce units or fraction thereof contained in a large batch or bulk manufactured at any given time or during any given period because in such cases beverages are normally and customarily discussed, computed and measured in quarts, gallons, drums, barrels and similar units of measure. It is common knowledge that it is customary to measure beverages in terms of ounces only in connection with the retail unit in which it is dispensed or distributed, to wit: glass, cup, bottle, can, package, or other similar dispensing or distributing container.

It is no more coincidence that the taxing unit of 12 fluid ounces or less fixed in the law is the same as that in which beverages, including soft drinks, are customarily bottled, canned, dispensed, distributed, sold, vended and served. However, as the statute involved herein does not set forth in explicit language the standard for applying the tax imposed thereby, it is necessary to determine the legislative intent in construing this statute.

Prior to the enactment of Public Law 5, the pertinent provisions of Chapter 22 of the Civil Regulations with the Force and Effect of Law in Guam provided as follows:

"1. An internal revenue tax will be collected on soft drinks as follows:

(a) IMPORTED INTO GUAM. Soft drinks imported into Guam will be taxed at the rate of 10 per cent of the retail selling price.

(b) MANUFACTURED IN GUAM. Soft drinks manufactured in Guam will be taxed at the rate of 10 per cent of the retail price.”

It is noted that under the former provisions of Chapter 22 of the Civil Regulations cited above, the standard for applying the tax imposed thereunder, is a retail unit. An examination of the legislative history of Public Law 5 as contained in the journal of the House of Council, Seventh Reg. ular Session, Ninth Guam Congress, 6 November 1948, indicates that the tax collected on soft drinks under the aforesaid provisions of Chapter 22, on the basis of the price then being charged, averaged 42 cent per bottle and that the primary purpose of enacting Public Law 5 was to raise more revenue by increasing the tax on soft drinks so that it would average 1 cent per bottle. The following statements of members of the Council pertaining to Public Law 5 appear in the said journal of the House of Council:

"The committe proposed certain modifications to the bill on soft drinks to increase the tax on Coca-Cola from 12 cent to 1 cent per bottle and the tax on gasoline from 3 cents to 4 cents per gallon, whether the gasoline is used for a vehicle that flies or runs on the ground. The tax on soft drinks would be increased from cent to 1 cent for each 8 fluid ounces or fraction thereof."

“Looking at the question from both sides, I am of the opinion that since our mission is to try to raise revenues and if the committee to which we have entrusted that responsibility, after due deliberation, has come to the conclusions which they have stated, I believe we should back the opinion of that committee as a whole.”

It appears that to apply the said tax on the basis of 1 cent for each 12 fluid ounces or fraction thereof contained in a large batch or bulk manufactured at a given time or over a given period would defeat the clear intent and purpose of Public Law 5 in that it would result in no increase and possibly a decrease in the revenues derived therefrom and is therefore untenable. Thus, it becomes apparent that it is the unit in which the soft drink is dispensed or distributed that the Congress intended as the standard of measurement in applying the tax thereon pursuant to Public Law 5.

In view of the foregoing, it is my conclusion that the tax imposed by Public Law 5 on soft drinks manufactured or imported into Guam should be computed on the basis of 1 cent for each 12 fluid ounces or fraction thereof contained in the individual units in which it is dispensed or distributed by the manufacturer or importer.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Lump-sum leave payments.

The following opinion was given to the Head, Department of Records and Accounts, on August 9, 1951, by Attorney General Knight G. Aulsbrook. The question is whether employees qualified for territorial post differential should be paid such differential on a lump-sum leave payment. Section 26 (a) of the Organic Act of Guam provides in part as follows:

"(employees of the Government of Guam) shall accrue leave in accordance with the Leave Act of the United States."

5. U.S.C.A. Section 61 (h) provides that whenever any employee of the Federal Government is separated from service, he shall be paid compensation in a lump-sum for all accumulated and current accrued annual or vacation leave to which he is entitled, and that

"such lump-sum shall equal the compensation that such employee would have received had he remained in the service until the expiration of the period of such annual or vacation leave:”

By reason of the foregoing, it seems clear that Government of Guam employees who separate from service are entitled to lump-sum payments equivalent to what their compensation would be for the period of accumulated leave, had they remained in service. No mention is made of differentials or any other break-down of compensation.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Requirements Shipper's Export Declarations on certain shipments

from Guam.

The following opinion was given to the Director of Commerce, government of Guam, on September 10, 1951, by Attorney General Knight G. Aulsbrook in reply to a request from the Director of Commerce. The question is whether United States Shipper's Export Declarations are required on exportations from Guam to the United States, its territories and possessions.

“Export” is defined by the Supreme Court of the United States as fol. lows:

... the word “export”, as used in the Constitution and laws of the United States, generally means the transportation of goods from this to a foreign country. “As the legal notice of emigration is a going abroad with an intention of not returning, so that of exportation is a severance of goods from the mass of things belonging to this country with an intention of uniting them to the mass of things belonging to some foreign country or other.'” (Swan & Finch Co. v. U. S. 190 U. S. 143, 145.)

Therefore, shipments to the United States, its territories or possessions, are not exports within the true meaning of the word.

“Shipper's Export Declarations” as defined in Part 370.1 (k) of the Export Control Regulations,"... includes any declaration required under regulations of the Department of Commerce and other government departments or agencies in connection with exportation.” (Underscoring supplied.)

Since said Declarations are required only in cases of exportations, and since shipment to the United States, its territories and possessions, are not exportations, it is my opinion that said Declarations are not required for the shipments in question.

Part 370.8, (b) Export Control Regulations, states: “For the purpose of export control, the Trust Territories ... shall be accorded the same treatment as the territories and possessions of the United States ..."

Since Declarations are not required for shipments to the United States, its territories and possessions, and 370.8 (b) for export control purposes places the Trust Territories in the same category as the United States, it follows that shipments to the Trust Territories are not subject to the filing of Declarations.

GOVERNMENT OF GUAM

Department of Law

Attorney General's Opinion SUBJECT: Power to collect the gross receipts tax, assessed under authority of

the General Tax Law of Guam, against the Bank of America Na

tional Trust and Savings Association. The following memorandum of law was prepared on September 26, 1951, by Assistant Attorney General Hogen J. Kallemeyn, in response to a request of Attorney General Knight G. Aulsbrook.

The Organic Act of Guam, Section 11, provides in part that the legislative power of Guam shall extend to all subjects of legislation of local application, not inconsistent with this Act and the laws of the United States applicable in Guam, and further, that taxes on property, internal revenues, sales, licenses and fees and royalties for franchises, privileges, and concessions may be imposed as may be uniformly provided by the legislature of Guam.

The Bank of America National Trust and Savings Association, hereinafter called the Bank of America, is a “national bank” organized under the laws of the United States and as such is an instrumentality of the United States (Gulley vs. First National Bank, 82 H 2nd 502. See also 12 USCA 548, note 34). It therefore follows that this relation to the United States is such that there can be no taxation of them by a state, territory, or possession except by consent specifically given by the Congress. (51 AmJur 254).

The National Bank Act, 12 USCA 548, provides that the legislature of each state may:

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