A-81192, NOVEMBER 23, 1936, 16 COMP. GEN. 515

A-81192: Nov 23, 1936

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FOR CIVILIAN OFFICERS AND EMPLOYEES STATIONED IN FOREIGN COUNTRIES THE CANAL ZONE IS NOT A FOREIGN COUNTRY WITHIN THE MEANING OF THE ACT OF JUNE 26. AS FOLLOWS: THERE IS ENCLOSED A COPY OF A LETTER FROM THE SECRETARY OF THE NAVY. WHERE SUCH QUARTERS ARE NOT AVAILABLE. SEC. 70): * * * A FOREIGN COUNTRY WAS DEFINED BY MR. THIS DEFINITION WAS AFFIRMED IN DELIMA V. IN THE LIGHT OF THIS DEFINITION A BRIEF CONSIDERATION OF THE TREATY UNDER WHICH THE UNITED STATES ACQUIRED JURISDICTION OVER THE CANAL ZONE TOGETHER WITH THE LEGISLATION ENACTED BY THE CONGRESS INCIDENT THERETO IS NECESSARY IN ORDER TO DETERMINE WHETHER THE SAID ZONE PROPERLY MAY BE CONSIDERED AS A "FOREIGN COUNTRY" WITHIN THE MEANING OF THE ACT OF JUNE 26.

A-81192, NOVEMBER 23, 1936, 16 COMP. GEN. 515

CANAL ZONE - STATUS - QUARTERS, ETC., FOR CIVILIAN OFFICERS AND EMPLOYEES STATIONED IN FOREIGN COUNTRIES THE CANAL ZONE IS NOT A FOREIGN COUNTRY WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, 46 STAT. 818, AUTHORIZING THE FURNISHING, WITHOUT COST, OF LIVING QUARTERS, ETC., OR AN ALLOWANCE IN LIEU THEREOF, TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, NOVEMBER 23, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 21, 1936, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF A LETTER FROM THE SECRETARY OF THE NAVY, DATED SEPTEMBER 28, 1936, REQUESTING THAT CERTAIN CITIES IN THE CANAL ZONE BE CLASSIFIED FOR THE PURPOSE OF GRANTING ALLOWANCES FOR RENT, HEAT, LIGHT, AND FUEL UNDER THE PROVISIONS OF THE ACT OF JUNE 26, 1930 (46 STAT. 818).

I SHALL APPRECIATE YOUR DECISION WHETHER THE CANAL ZONE MAY PROPERLY BE CONSIDERED AS COMING WITHIN THE PURVIEW OF THE LEGISLATION REFERRED TO ABOVE FOR THE PURPOSE INDICATED.

THE ACT OF JUNE 26, 1930, 46 STAT. 818, PROVIDES:

THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS AND, WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, NOTWITHSTANDING THE PROVISIONS OF SECTION 1765 OF THE REVISED STATUTES (U.S.C., TITLE 5, SEC. 70): * * *

A FOREIGN COUNTRY WAS DEFINED BY MR. CHIEF JUSTICE MARSHALL AND MR. CHIEF JUSTICE STORY TO BE ,ONE EXCLUSIVELY WITHIN THE SOVEREIGNTY OF A FOREIGN NATION AND WITHOUT THE SOVEREIGNTY OF THE UNITED STATES.' THE BOAT ELIZA, 2 GALL. 4, FED.CAS. NO. 4,346; TABER V. UNITED STATES, 1 STORY 1, FED.CAS. NO. 13,722; THE SHIP ADVENTURE, 1 BROCK. 235, 241, FED.CAS. NO. 93; UNITED STATES V. RICE, 4 WHEAT. 246. THIS DEFINITION WAS AFFIRMED IN DELIMA V. BIDWELL, 182 U.S. 1, 180, AND FABER V. UNITED STATES, 157 FED.REP. 140. SEE ALSO WORDS AND PHRASES, SECOND SERIES, 608.

IN THE LIGHT OF THIS DEFINITION A BRIEF CONSIDERATION OF THE TREATY UNDER WHICH THE UNITED STATES ACQUIRED JURISDICTION OVER THE CANAL ZONE TOGETHER WITH THE LEGISLATION ENACTED BY THE CONGRESS INCIDENT THERETO IS NECESSARY IN ORDER TO DETERMINE WHETHER THE SAID ZONE PROPERLY MAY BE CONSIDERED AS A "FOREIGN COUNTRY" WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, SUPRA.

ON JUNE 28, 1902, CONGRESS PASSED AN ACT, 32 STAT. 481, KNOWN AS THESPOONER ACT, ENTITLED "AN ACT TO PROVIDE FOR THE CONSTRUCTION OF A CANAL CONNECTING THE WATERS OF THE ATLANTIC AND PACIFIC OCEANS.' AUTHORIZED THE PURCHASE OF THE RIGHTS OF THE NEW PANAMA CANAL COMPANY OF FRANCE IN THE UNCOMPLETED CANAL AND ITS HOLDINGS OF THE STOCK OF THE PANAMA RAILROAD CO. IT FURTHER PROVIDED:

THAT THE PRESIDENT IS HEREBY AUTHORIZED TO ACQUIRE FROM THE REPUBLIC OF COLOMBIA, FOR AND ON BEHALF OF THE UNITED STATES, UPON SUCH TERMS AS HE MAY DEEM REASONABLE, PERPETUAL CONTROL OF A STRIP OF LAND, * * * AND THE RIGHT TO USE AND DISPOSE OF THE WATERS THEREON, AND TO EXCAVATE, CONSTRUCT, AND TO PERPETUALLY MAINTAIN, OPERATE, AND PROTECT THEREON A CANAL, * * * WHICH CONTROL SHALL INCLUDE THE RIGHT TO PERPETUALLY MAINTAIN AND OPERATE THE PANAMA RAILROAD, * * * AND ALSO JURISDICTION OVER SAID STRIP AND THE PORTS AT THE ENDS THEREOF TO MAKE SUCH POLICE AND SANITARY RULES AND REGULATIONS AS SHALL BE NECESSARY TO PRESERVE ORDER AND PRESERVE THE PUBLIC HEALTH THEREON, AND TO ESTABLISH SUCH JUDICIAL TRIBUNALS AS MAY BE AGREED UPON THEREON AS MAY BE NECESSARY TO ENFORCE SUCH RULES AND REGULATIONS.

THE CITED ACT CREATED A COMMISSION THROUGH WHOM THE PRESIDENT WAS TO DO THE WORK. THEREAFTER PANAMA REVOLTED FROM COLOMBIA AND WAS RECOGNIZED BY THE UNITED STATES, AND ON NOVEMBER 18, 1903, MADE A TREATY WITH THE UNITED STATES (33 STAT. 2234) GRANTING A RIGHT-OF-WAY AND TRANSFERRING PERPETUAL CONTROL OF THE CANAL ZONE TO THE UNITED STATES. THE TREATY PROVIDES IN PART AS OLLOWS:

ARTICLE II

THE REPUBLIC OF PANAMA GRANTS TO THE UNITED STATES IN PERPETUITY THE USE, OCCUPATION, AND CONTROL OF A ZONE OF LAND AND LAND UNDER WATER FOR THE CONSTRUCTION, MAINTENANCE, OPERATION, SANITATION, AND PROTECTION OF SAID CANAL OF THE WIDTH OF TEN MILES * * * WITH THE PROVISO THAT THE CITIES OF PANAMA AND COLON AND THE HARBORS ADJACENT TO SAID CITIES, WHICH ARE INCLUDED WITHIN THE BOUNDARIES OF THE ZONE ABOVE DESCRIBED, SHALL NOT BE INCLUDED WITHIN THIS GRANT, * * *

ARTICLE III

THE REPUBLIC OF PANAMA GRANTS TO THE UNITED STATES ALL THE RIGHTS, POWER, AND AUTHORITY WITHIN THE ZONE MENTIONED AND DESCRIBED IN ARTICLE II OF THIS AGREEMENT AND WITHIN THE LIMITS OF ALL AUXILIARY LANDS AND WATERS MENTIONED AND DESCRIBED IN SAID ARTICLE II WHICH THE UNITED STATES WOULD POSSESS AND EXERCISE IF IT WERE THE SOVEREIGN OF THE TERRITORY WITHIN WHICH SAID LANDS AND WATERS ARE LOCATED TO THE ENTIRE EXCLUSION OF THE EXERCISE BY THE REPUBLIC OF PANAMA OF ANY SUCH SOVEREIGN RIGHTS, POWER, OR AUTHORITY.

THE ACT OF APRIL 28, 1904, 33 STAT. 429, AUTHORIZED THE PRESIDENT TO MAKE PAYMENTS UNDER THE TREATY TO THE REPUBLIC OF PANAMA AND TO "TAKE POSSESSION OF AND OCCUPY ON BEHALF OF THE UNITED STATES," IN ACCORDANCE WITH THE AFOREMENTIONED TREATY, A ZONE AS DEFINED THEREIN. IT ALSO PROVIDED THAT, PENDING THE ESTABLISHMENT OF A TEMPORARY GOVERNMENT IN THE CANAL ZONE:

* * * ALL THE RIGHTS, POWERS, AND AUTHORITY GRANTED BY THE TERMS OF SAID TREATY TO THE UNITED STATES SHALL BE VESTED IN SUCH PERSON OR PERSONS AND SHALL BE EXERCISED IN SUCH MANNER AS THE PRESIDENT SHALL DIRECT FOR THE GOVERNMENT OF SAID ZONE * * *.

UNDER THIS ACT, THE PRESIDENT TOOK POSSESSION OF THE ZONE AND DIRECTED THAT THE CANAL SHOULD BE CONSTRUCTED AND THE ZONE GOVERNED BY HIM THROUGH THE PANAMA CANAL COMMISSION UNDER THE SECRETARY OF WAR. SEE MCCONAUGHEY V. MORROW, 263 U.S. 39, 45.

THE PANAMA CANAL ACT,"AN ACT TO PROVIDE FOR THE OPENING, MAINTENANCE, PROTECTION, AND OPERATION OF THE PANAMA CANAL, AND THE SANITATION AND GOVERNMENT OF THE CANAL ZONE," APPROVED AUGUST 24, 1912, 37 STAT. 560, PROVIDES IN PART:

SEC. 2. THAT ALL LAWS, ORDERS, REGULATIONS, AND ORDINANCES ADOPTED AND PROMULGATED IN THE CANAL ZONE BY ORDER OF THE PRESIDENT FOR THE GOVERNMENT AND SANITATION OF THE CANAL ZONE AND THE CONSTRUCTION OF THE PANAMA CANAL ARE HEREBY RATIFIED AND CONFIRMED AS VALID AND BINDING UNTIL CONGRESS SHALL OTHERWISE PROVIDE. THE EXISTING COURTS ESTABLISHED IN THE CANAL ZONE BY EXECUTIVE ORDER ARE RECOGNIZED AND CONFIRMED TO CONTINUE IN OPERATION UNTIL THE COURTS PROVIDED FOR IN THIS ACT SHALL BE ESTABLISHED.

SECTION 4 OF THE ABOVE ACT PROVIDED THAT WHEN THE CONSTRUCTION OF THE CANAL "SHALL BE SUFFICIENTLY ADVANCED TOWARD COMPLETION" THE PRESIDENT WAS AUTHORIZED TO DISCONTINUE THE ISTHMIAN CANAL COMMISSION AND TO THEREAFTER COMPLETE AND GOVERN THE CANAL ZONE "THROUGH A GOVERNOR OF THE PANAMA CANAL" AND SUCH OTHER PERSONS AS MIGHT BE NECESSARY. "ALL OTHER PERSONS NECESSARY FOR THE COMPLETION, CARE, MANAGEMENT, MAINTENANCE, SANITATION, GOVERNMENT, OPERATION, AND PROTECTION OF THE PANAMA CANAL AND CANAL ZONE SHALL BE APPOINTED BY THE PRESIDENT, * * * BUT SALARIES OR COMPENSATION FIXED HEREUNDER BY THE PRESIDENT SHALL IN NO INSTANCE EXCEED BY MORE THAN 25 PERCENTUM THE SALARY OR COMPENSATION PAID FOR THE SAME OR SIMILAR SERVICES TO PERSONS EMPLOYED BY THE GOVERNMENT IN CONTINENTAL UNITED STATES.'

ON OR ABOUT JANUARY 1, 1922, THE CANAL ZONE AUTHORITIES, ACTING IN CONFORMITY WITH AN ORDER OF THE PRESIDENT, DATED DECEMBER 3, 1921, DISCONTINUED THE PRACTICE, WHICH HAD BEEN FOLLOWED DURING THE PERIOD OF CONSTRUCTION OF THE PANAMA CANAL--- AT A TIME WHEN LIVING CONDITIONS ON THE ISTHMUS HAD NOT REACHED A STATE OF NORMALCY--- OF FURNISHING CIVILIAN EMPLOYEES LIVING QUARTERS, ETC. THIS ACTION WAS UPHELD IN MCCONAUGHEY V. MORROW, 263 U.S. 39, WHICH DECIDED THAT UNDER EXISTING LAW AND REGULATIONS APPLICABLE TO THE CANAL ZONE, EMPLOYEES THEREOF WERE NOT ENTITLED TO ANY ALLOWANCES WITH RESPECT TO QUARTERS, ETC., NOT ENJOYED BY CIVILIAN EMPLOYEES IN CONTINENTAL UNITED STATES.

SECTION 12 OF THE ACT OF AUGUST 24, 1912, PROVIDES:

THAT ALL LAWS AND TREATIES RELATING TO THE EXTRADITION OF PERSONS ACCUSED OF CRIME IN FORCE IN THE UNITED STATES, TO THE EXTENT THAT THEY MAY NOT BE IN CONFLICT WITH OR SUPERSEDED BY ANY SPECIAL TREATY ENTERED INTO BETWEEN THE UNITED STATES AND THE REPUBLIC OF PANAMA WITH RESPECT TO THE CANAL ZONE, AND ALL LAWS RELATING TO THE RENDITION OF FUGITIVES FROM JUSTICE AS BETWEEN THE SEVERAL STATES AND TERRITORIES OF THE UNITED STATES, SHALL EXTEND TO AND BE CONSIDERED IN FORCE IN THE CANAL ZONE, AND FOR SUCH PURPOSES AND SUCH PURPOSES ONLY THE CANAL ZONE SHALL BE CONSIDERED AND TREATED AS AN ORGANIZED TERRITORY OF THE UNITED STATES.

THE PROMULGATION OF REGULATIONS AND THE ENACTMENT OF LAWS DEALING WITH QUESTIONS RELATING TO THE CANAL ZONE NECESSARILY ARE AFFECTED BY MATTERS OF LEGISLATIVE POLICY. IN THE CONSTRUCTION OF ACTS OF CONGRESS VARYING WIDELY IN SCOPE AND PURPOSE THE CANAL ZONE HAS BEEN TREATED, IN CERTAIN INSTANCES AND FOR SPECIFIC PURPOSES, IN THE LIGHT OF A FOREIGN TERRITORY. UNDER SECTION 1 OF THE ACT OF FEBRUARY 5, 1917, 39 STAT. 874, THE PORTS OF SAID ZONE ARE DEEMED TO BE FOREIGN PORTS FOR IMMIGRATION PURPOSES. THE ACT OF AUGUST 21, 1916, 39 STAT. 527, AUTHORIZES THE RELIEF OF AMERICAN SEAMEN IN THE CANAL ZONE ON THE BASIS OF RELIEF TO SUCH SEAMEN IN FOREIGN COUNTRIES. 5 COMP. GEN. 647. SEE ALSO THE LUCKENBACH STEAMSHIP COMPANY V. UNITED STATES, 280 U.S. 173, HOLDING THAT PORTS IN THE CANAL ZONE ARE TO BE REGARDED AS FOREIGN PORTS WITHIN THE MEANING OF SECTION 4009, REVISED STATUTES, RELATING TO COMPENSATION FOR TRANSPORTING MAILS. AGAIN, THE ACT OF MARCH 2, 1905, 33 STAT. 843, PROVIDES THAT ALL LAWS AFFECTING IMPORTS FROM FOREIGN COUNTRIES SHALL APPLY TO IMPORTS FROM THE CANAL ZONE. IN SECTION 12 OF THE PANAMA CANAL ACT, SUPRA, THE CANAL ZONE WAS TREATED AS AN ORGANIZED TERRITORY OF THE UNITED STATES FOR THE SOLE PURPOSE OF APPLYING THERETO THE LAWS OF THE UNITED STATES RELATING TO THE EXTRADITION OF PERSONS ACCUSED OF CRIME.

IN NUMEROUS INSTANCES AND FOR REASONS EQUALLY COGENT, LAWS HAVE BEEN ENACTED AND REGULATIONS OR ORDERS PROMULGATED IN WHICH FOR THE PURPOSES INVOLVED NO CLEAR DISTINCTION HAS BEEN DRAWN BETWEEN THE CANAL ZONE AND CONTINENTAL UNITED STATES; AND IN THE CONSTRUCTION OF SUCH LAWS AND REGULATIONS THE ACCOUNTING OFFICERS AND THE COURTS ARE IN AGREEMENT THEREWITH. BY EXECUTIVE LETTER OF MAY 9, 1904 (MINUTES OF ISTHMIAN CANAL COMMISSION, P. 57), THE ANTIGAMBLING LAWS OF THE UNITED STATES WERE MADE APPLICABLE TO THE CANAL ZONE. BY ORDER OF THE SECRETARY OF WAR ISSUED MARCH 12, 1907, BY AUTHORITY OF THE PRESIDENT, THERE WERE EXTENDED TO THE CANAL ZONE THE PATENT, TRADE-MARK, AND COPYRIGHT LAWS OF THE UNITED STATES. THE ACT OF FEBRUARY 27, 1933, 47 STAT. 1159, SPECIFICALLY STIPULATED THAT SUCH LAWS SHOULD HAVE THE SAME FORCE AND EFFECT IN THE CANAL ZONE AS IN CONTINENTAL UNITED STATES. THE ACT OF JUNE 15, 1917, 40 STAT. 231, RELATING TO CRIMES UNDER THE NEUTRALITY LAWS PROVIDES THAT THE TERM "UNITED STATES" SHALL INCLUDE THE CANAL ZONE. ALSO, THE WAR DEPARTMENT APPROPRIATION ACT OF AUGUST 24, 1912, 37 STAT. 576, PROVIDES THAT THEREAFTER THE "LAWS ALLOWING INCREASE OF PAY TO OFFICERS AND ENLISTED MEN FOR FOREIGN SERVICE SHALL NOT APPLY TO SERVICE IN THE CANAL ZONE, PANAMA, * * *.' SEE 23 COMP. DEC. 82. COMPARE 22 COMP. DEC. 500. SEE ALSO 26 COMP. DEC. 525; 13 COMP. GEN. 441; 15 ID. 528 AND 15 ID. 36, IN WHICH LATTER DECISION IT WAS HELD THAT THE CANAL ZONE "MUST BE CONSIDERED AS INCLUDED IN THE BROAD TERM ,TERRITORIES AND POSSESSIONS" OF THE UNITED STATES AS USED IN SECTION 2 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935.'

AS TO THE LEGISLATIVE POLICY ACTUATING THE ACTS RELATING TO IMPORTATIONS AND IMMIGRATION FROM THE CANAL ZONE TO THE UNITED STATES, MENTION MAY BE MADE OF THE FACT THAT UNDER THE TREATY WITH THE REPUBLIC OF PANAMA THE UNITED STATES IN 1904 EXERCISED CERTAIN RIGHTS AS TO IMPORTS INTO THE CANAL ZONE AND THAT UNDER A MODUS VIVENDI NEGOTIATED BY THE THEN SECRETARY OF WAR, HON. WILLIAM H. TAFT, WITH THE AUTHORITIES OF THE REPUBLIC OF PANAMA, PROVISION WAS MADE FOR "COMPLETE FREE TRADE BETWEEN THE CANAL ZONE AND THE REPUBLIC OF PANAMA, BOTH OF PERSONS AND MERCHANDISE.' SEE LETTER OF THE SECRETARY OF WAR TRANSMITTING THE FIRST ANNUAL REPORT OF THE ISTHMIAN CANAL COMMISSION, DECEMBER 1, 1904, WASHINGTON, GOVERNMENT PRINTING OFFICE, 1905, AT PAGES 6 AND 16.

THE UNITED STATES EXERCISES BY VIRTUE OF ARTICLE 3 OF THE AFOREMENTIONED TREATY A JURISDICTION WITHIN SAID ZONE AS COMPLETE AS "IF IT WERE THE SOVEREIGN" THEREIN "TO THE ENTIRE EXCLUSION OF THE EXERCISE BY THE REPUBLIC OF PANAMA OF ANY SUCH SOVEREIGN RIGHTS, POWERS OR AUTHORITY.' SEE WILSON V. SHAW, 204 U.S. 24 AT PAGES 31 AND 33 WHERE THE SUPREME COURT IN AN OPINION BY MR. JUSTICE BREWER, USED THE FOLLOWING LANGUAGE: * * * IT IS ENOUGH TO SAY THAT THE EFFORTS OF DE LESSEPS FAILED. SINCE THEN PANAMA HAS SECEDED FROM THE REPUBLIC OF COLUMBIA AND ESTABLISHED A NEW REPUBLIC WHICH HAS BEEN RECOGNIZED BY OTHER NATIONS. THIS NEW REPUBLIC HAS BY TREATY GRANTED TO THE UNITED STATES RIGHTS, TERRITORIAL AND OTHERWISE. * * * PAGE 31.

OTHER PROVISIONS OF THE TREATY ADD TO THE GRANTS NAMED IN THESE TWO ARTICLES (2 AND 3) FURTHER GUARANTIES OF EXCLUSIVE RIGHTS OF THE UNITED STATES IN THE CONSTRUCTION AND MAINTENANCE OF THIS CANAL. IT IS HYPERCRITICAL TO CONTEND THAT THE TITLE OF THE UNITED STATES IS IMPERFECT, AND THAT THE TERRITORY DESCRIBED DOES NOT BELONG TO THIS NATION, BECAUSE OF THE OMISSION OF SOME OF THE TECHNICAL TERMS USED IN ORDINARY CONVEYANCES OF REAL ESTATE.

ACCORDINGLY, YOU ARE ADVISED THAT THE CANAL ZONE MAY NOT BE CONSIDERED AS A FOREIGN COUNTRY WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, SUPRA.