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It is my opinion that the reasoning adopted by the courts in the above-cited cases can, and should be, adopted in determining whether persons, otherwise qualified, who live on Federal reservations in Guam are entitled to vote in territorial elections. If the reservation is held by the United States in fee simple, then residents thereon cannot acquire voting residence in Guam. If the interest in land held by the United States is less than fee simple, then residents thereon who are otherwise qualified, are entitled to the right to vote.
Again, it is emphasized that the question of voting residence is a question of fact which must be decided on a case to case basis in the light of all available information. The right to vote is a vested right, and persons wrongfully excluded from registration and voting may seek relief from the courts. Therefore, sound judgment should and must be applied before any person seeking to vote is denied that right.
RUSSELL L. STEVENS,
1. “Section 7. For purposes of registration for voting, persons receiving
a territorial post differential salary payment and persons who are employed in Guam under a contract of employment by which the employer agrees at his own expense to return the employee to his place of recruitment outside Guam shall be deemed to have retained their res
idence outside Guam." 2. “Section 32. It shall be the duty and responsibility of the Election
Commissioner to prepare and promulgate a manual of administrative procedures to be used in the conduct of elections. The manual will set forth the regulations to be followed by all election officials as well as descriptions of the necessary equipment and forms to be used in election procedures. The content of the manual will take effect upon the approval of the Governor of Guam."
GOVERNMENT OF GUAM
Department of Law
Attorney General's Opinion
SUBJECT: Jurisdiction of the government of Guam to register and tax a for
eign corporation doing business on a military reservation.
The following opinion was given on May 21, 1952, in reply to an inquiry dated April 23, 1952, from the American Express Company, Inc. The question is the extent of subject jurisdiction.
The American Express Company, Inc., (hereinafter referred to as the Company) is incorporated under the laws of the State of Connecticut, and has been invited by the Commanding General of the Marbo Air Force Command to establish military banking facilities at Andersen Air Force Base, Guam; such banking facilities are to be made available only to authorized military personnel, civilian military employees, and dependents, and all activities to be carried on within the boundaries of said military reservation. This opinion is based on such facts.
Andersen Air Force Base is situated on a Federal reservation owned in fee by the United States Government; Presidential Executive Order No. 10178, dated October 31, 1950, reserves the subject Federal reservation to the United States with “control and jurisdiction" in the United States. The effect of such reservation, standing alone, removes the area, together with all activities carried on within its boundaries, from the jurisdiction of the government of Guam; in the absence of any specific grant of powers from the Federal Government, the government of Guam could not exercise any of its civil powers, control or jurisdiction within such reservation.
No specific grant of power from the Federal Government can be found relative to the licensing of business carried on solely within a Federal reservation. Therefore, it is the position of the government of Guam that the company need not secure a business license to operate your military banking facilities at Andersen Air Force Base.
However, the company is subject to the applicable tax law of the government of Guam. Sections 104 and 110, Chapter 4, Title 4 of the U.S.C.A., contains a grant of power to civil governments for the purpose of the levy and collection of certain taxes on income derived from within, and sales made within, a Federal reservation. Section 106 provides that no person shall be relieved from liability for any income tax levied by any State by reason of his residing within a Federal area or receiving income from transactions occurring or services performed within such area. Section 110 defines "income tax” as meaning any tax levied on, with respect to, or measured by, not income, gross income, or gross receipts, and further defines "State” as including any territory or possession of the United States. The business privilege tax law of Guam levies a tax measured by gross income or gross receipts. It is the opinion of the government of Guam that the company is subject to the levy, assessment and payment of this tax.
Further, it is our position, in order that we may have a means of enforcing our jurisdiction to tax the aforesaid activities, that the company is required to register with the government of Guam as a foreign corporation doing business in Guam; this has an added advantage of placing the company within the jurisdiction of the courts of Guam for use in enforcing whatever rights and remedies which may accrue under our laws.
RUSSELL L. STEVENS,
GOVERNMENT OF GUAM
Department of Law
Attorney General's Opinion
SUBJECT: Tax and duty status of decorative glass balls and necklaces.
The following opinion was given to the Director of Commerce, government of Guam, on May 21, 1952, in response to questions propounded
in Union Novelty Company, Inc.'s letter of March 27, 1952, relative to the tax and duty status of subject named merchandise.
Large glass balls to be used for Christmas decorations are not "jewelry” within the meaning of Public Law 5, Ninth Guam Congress, and are not subject to a tax on their importation into Guam; neither is the “manufacturer's tax on jewelry”, levied by the above cited law, applicable to the assembly of these ornaments in Guam. However, the business privilege tax, levied by Guam Congress Bill No. 3, dated November 1, 1941, (known as the “Gross Receipts Tax Law”) is applicable and the tax therein levied must be paid on the gross income derived from such business carried on in Guam.
Loose pearls such as the company is intending to ship into Guam for stringing, either as necklaces or for embroidery purposes, are properly classed as “jewelry” within the purview of Public Law No. 5, aforesaid, and as such would be subject to the 20% tax when imported into Guam; if the assembled or strung pearls are exported from Guam (i.e., shipped to a destination outside of Guam), without being the subject of a sale within Guam, they would come within the export drawback provision and the tax would be refundable. However, if any of the pearls are the subject of a sales transaction, or title to them is transferred in any manner in Guam the export drawback provision would not be applicable. The pearls having been the subject of the tax on jewelry, they would not be subject to the 10% manufacturer's tax on jewelry merely by virtue of their assembly into strings. The business privilege tax cited above would also be applicable to the gross income derived from the handling of these pearls on Guam.
The company further asks whether the finished product, in both the case of the glass balls and the pearls, would be given a "certificate of origin” by the Collector of Customs so that they might enter the United States duty free. 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. To be classified as a “manufacture” the finished product must be a "substantial transformation” of the original materials used; it is highly improbable that the mere stringing of beads or glass balls would constitute such a “substantial transformation” as to bring it within the classification of a manufacture. The final decision of whether or not an article falls within such classification can only be made by the Bureau of Customs, United States Treasury Department. It is therefore suggested that the interested parties make known to the Bureau of Customs all of the facts relating to the contemplated process and request their official opinion thereon.
RUSSELL L. STEVENS,
REPORT OF JUDICIAL COUNCIL
GOVERNMENT OF GUAM
The Governor of Guam, the President and Members of the
1. The following report is submitted pursuant to Section 122 of Public Law 17, First Guam Legislature, approved August 9, 1951. Sub-section (4) of said section provides that the Judicial Council shall report to the Governor and the Legislature annually as to the state of the business of the courts with such recommendations as it may deem proper. This is the first report under that sub-section.
2. JUDICIAL COUNCIL. The Judicial Council held its first and organization meeting August 22, 1951 with the following members present:
Paul D. Shriver, Judge, District Court of Guam, Chairman, ex officio.
Judge Manibusan was elected vice-chairman and V. B. Bamba, Clerk of the Island Court, was appointed as acting secretary to serve without compensation. Since its organization the Council has met regularly the first and third Wednesdays of each month.
3. BUSINESS TRANSACTED AND PENDING. There are attached herewith exhibits A, B and C showing by court the cases pending January 1, 1951, cases filed and cases disposed of during 1951. Exhibit A relates to the District Court, B to the Island Court and C to the Police Court. The figures of the District and Island Courts are broken down into civil and criminal cases. The District Court figures include cases arising under Federal laws as its local jurisdiction in civil matters over $2,000.00 was provided by Public Law 17 and its jurisdiction over local felonies did not arise until October 31, 1951 when Public Law 248 of the United States Congress permitted appeals from all final decisions of the District Court to the Court of Appeals for the Ninth Circuit.
4. DISTRICT COURT. The Judicial Council on October 3, 1951 approved the Rules of Court for the District Court, including approval of procedure on appeal from the Island Court. At the suggestion of Judge Maris the procedure on appeal was modified by the Judicial Council Nov. ember 21, 1951 to simplify procedure. Notices of appeal have been filed in the Island Court in five cases but these have not been properly docketed in the District Court as of this date.
5. ISLAND COURT. Until the Governor makes appointments of Island Court judges under Public Law 17, it is difficult for the Judicial Council to make recommendations in connection with the Island Court since the judges so appointed will naturally wish to have a voice in any recommendation. However, two sets of rules have been prepared for consideration by the Judicial Council and the Council is awaiting recommendation of the local bar before taking action. The Council authorized Mr. Bamba to make a study of the court record in effect in the District Court with a view to its adoption in the Island Court. The reason for this is that such system is based upon experience, trial and error in the United States and represents the latest and best technique. The Island Court under the guidance of the Chief Judge, is in the process of speeding up trials and eliminating civil cases which should be dismissed for lack of prosecution. No appointment of a marshal for the Island Court has been made, pending appointment of the Judges, nor has a study been made of the personnel needs of the court until such appointments are made and the future needs can be determined.
There was a tendency for records in the Island Court to be removed for temporary use outside the Court. Upon the recommendation of Chief Judge Manibusa, the Judicial Council ruled that records should not be removed but could be used in the clerk's office where space would be made available.
6. POLICE COURT. The principal problem confronting the Council in connection with the Police Court is to make a study of its system of record keeping. This will be done in the near future.
7. ATTORNEYS. No applications for admission to the Guam Bar were acted upon but the Council referred to the bar committee three charges of unethical conduct for investigation and recommendation.
8. PROBATION. The members of the Council are of the unanimous view that one of the principal benefits of Public Law 17 is in setting up a system of probation. No probation officer has been appointed by the Governor but he is prepared to receive applications. All employees of the courts, other than employees of the District Court, are by agreement with the Governor to be intergrated with the overall personnel system in effect in the Government of Guam. Positions will be classified and salaries follow such classification.
As will be noted under recommendations the probation system has received considerable study by the Council and it is believed that in addition to serving as probation officer he can also serve as parole officer. One of his first duties will be to review the sentences of those now in prison with a view to making recommendations to the Parole Board and the Governor in those instances where the prisoners might have been given probation if the probation system had been in effect when they were sentenced. The Council proposes that when the probation officer is appointed he will be sent to California for about two months to make an on the job study of modern probation. Arrangements have been made to make this possible and Federal probation forms and manual are now available to him. The Federal system was in effect provided for by Public