A-95291, JUNE 2, 1938, 17 COMP. GEN. 1047

A-95291: Jun 2, 1938

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IS TO PROHIBIT PAYMENT OF COMPENSATION ON AND AFTER JULY 1. TO PERSONS IN THE SERVICE OF THE UNITED STATES AT A POST OF DUTY IN THE CONTINENTAL UNITED STATES WHO WERE NOT IN SUCH SERVICE ON MARCH 28. WHO ARE NOT CITIZENS OF THE UNITED STATES ON JULY 1. IS AS FOLLOWS: A QUESTION HAS ARISEN CONCERNING THE PROPER INTERPRETATION OF SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939. OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES. WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES: PROVIDED.

A-95291, JUNE 2, 1938, 17 COMP. GEN. 1047

APPROPRIATIONS - LIMITATIONS - EMPLOYMENT AND COMPENSATION OF ALIENS THE EFFECT OF THE RESTRICTION ON EXPENDITURE OF FUNDS APPROPRIATED BY THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT OF 1939, DATED MARCH 28, 1938, 52 STAT 120, IS TO PROHIBIT PAYMENT OF COMPENSATION ON AND AFTER JULY 1, 1938, TO PERSONS IN THE SERVICE OF THE UNITED STATES AT A POST OF DUTY IN THE CONTINENTAL UNITED STATES WHO WERE NOT IN SUCH SERVICE ON MARCH 28, 1938, AND WHO ARE NOT CITIZENS OF THE UNITED STATES ON JULY 1, 1938, OR ON DATE OF APPOINTMENT THEREAFTER, EXCEPT WHERE HAD NOT FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN ON OR PRIOR TO MARCH 28, 1938, OR WHO DID NOT OWE ALLEGIANCE TO THE UNITED STATES ON MARCH 28, 1938, EXCEPT WHERE EXEMPTED, AND WHILE THE CLAUSE "WHO OWES ALLEGIANCE TO THE UNITED STATES" EXEMPTS FROM THE RESTRICTION FILIPINOS IN THE SERVICE OF THE UNITED STATES ON MARCH 28, 1938, THE WORD "ALLEGIANCE" MEANS ABSOLUTE AND PERMANENT ALLEGIANCE TO THE UNITED STATES AS DISTINGUISHED FROM QUALIFIED AND TEMPORARY ALLEGIANCE, AND ALIENS RESIDING IN THE UNITED STATES SHOULD NOT BE REGARDED AS OWING ALLEGIANCE TO THE UNITED STATES, NOR MAY FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO SUCH POSITIONS BE EXEMPTED FROM THE RESTRICTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JUNE 2, 1938:

YOUR LETTER OF MAY 28, 1938, IS AS FOLLOWS:

A QUESTION HAS ARISEN CONCERNING THE PROPER INTERPRETATION OF SECTION 5 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR 1939, 52 STAT. 120, WHICH PROVIDES:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ENLISTED MEN OF THE UNITED STATES COAST GUARD WHO ARE ON ACTIVE DUTY IN THAT SERVICE ON THE EFFECTIVE DATE OF THIS ACT, UNTIL THE EXPIRATION OF THE PERIOD REQUIRED FOR SUCH ENLISTED MEN TO COMPLETE THEIR NATURALIZATION, NOR SHALL IT APPLY TO PERSONNEL OF THE COAST GUARD ON THE RETIRED LIST, AND ENLISTED MEN ON ACTIVE DUTY WITH OVER TWELVE YEARS' HONORABLE SERVICE WHO ARE INELIGIBLE FOR UNITED STATES CITIZENSHIP.'

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT REVEALS THAT THE CLAUSE "WHO OWES ALLEGIANCE TO THE UNITED STATES" WAS INTENDED TO APPLY ONLY TO FILIPINOS, AND OTHERS SIMILARLY SITUATED. SEE (1938) 83 CONG.REC. 3435, 3436. HOWEVER, IT HAS REPEATEDLY BEEN HELD BY THE SUPREME COURT THAT AN ALIEN IN THE UNITED STATES OWES ALLEGIANCE THERETO. SEE E.G., CARLISLE V. UNITED STATES (1872), 83 U.S. 147; NAGLE V. LOI HOA (1928), 275 U.S. 475, 477; UNITED STATES V. WONG KIM ARK (1898), 169 U.S. 649, 655. UNDER THE SUPREME COURT'S INTERPRETATION OF THE WORD ,ALLEGIANCE," IT WOULD SEEM THAT AN ALIEN IN THE EMPLOY OF THE GOVERNMENT ON MARCH 28, 1938, WOULD BE PERMITTED TO REMAIN ON THE GOVERNMENT PAY ROLL DURING THE FISCAL YEAR 1939, WITHOUT REGARD TO WHETHER SUCH ALIEN HAD FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN. SUCH CONSTRUCTION WOULD SEEM TO VITIATE THAT CLAUSE IN SECTION 5 OF THE STATUTE WHICH PROVIDES THAT AN ALIEN IN THE EMPLOY OF THE GOVERNMENT ON MARCH 28, 1938, WOULD BE PERMITTED TO REMAIN ON THE GOVERNMENT PAY ROLL ONLY IF, PRIOR TO THAT DATE, HE HAD FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN.

THE DEPARTMENT IS CONFRONTED AT THIS TIME WITH THE NECESSITY OF SEASONABLY NOTIFYING SUCH EMPLOYEES AS MAY BE AFFECTED BY SECTION 5 OF THE ACT THAT THEY MAY NOT BE RETAINED AFTER JUNE 30, 1938, IN ORDER THAT THEY MAY NOT BE DEPRIVED OF ANY ACCRUED ANNUAL LEAVE. ACCORDINGLY, IT IS RESPECTFULLY REQUESTED THAT THIS MATTER BE GIVEN YOUR PROMPT ATTENTION.

THE EFFECT OF THE QUOTED STATUTORY RESTRICTION ON EXPENDITURE OF FUNDS APPROPRIATED BY THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT FOR 1939 DATED MARCH 28, 1938, PUBLIC NO. 453, IS TO PROHIBIT THE USE OF SUCH FUNDS ON AND AFTER JULY 1, 1938, AND DURING THE FISCAL YEAR 1939, TO PAY THE SALARIES OF (1) PERSONS IN THE SERVICE OF THE UNITED STATES AT A POST OF DUTY IN THE CONTINENTAL UNITED STATES WHO WERE NOT IN SUCH SERVICE ON MARCH 28, 1938, AND WHO ARE NOT CITIZENS OF THE UNITED STATES ON JULY 1, 1938, OR ON DATE OF APPOINTMENT THEREAFTER, WITH THE EXCEPTION OF THOSE EXEMPTED FROM THE RESTRICTION BY THE PROVISO; AND (2) ALIENS IN THE SERVICE OF THE UNITED STATES AT A POST OF DUTY IN THE CONTINENTAL UNITED STATES ON MARCH 28, 1938, WHO BEING ELIGIBLE FOR CITIZENSHIP HAD NOT FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN ON OR PRIOR TO MARCH 28, 1938, OR WHO DID NOT OWE ALLEGIANCE TO THE UNITED STATES ON MARCH 28, 1938, WITH THE EXCEPTION OF THOSE EXEMPTED FROM THE RESTRICTION BY THE PROVISO. ALIENS IN THE SERVICE IN THE CONTINENTAL UNITED STATES WHO HAD NOT DECLARED THEIR INTENTION TO BECOME CITIZENS ON OR PRIOR TO MARCH 28, 1938, MAY NOT BE EXEMPTED FROM THE RESTRICTION MERELY BY DECLARING THEIR INTENTION TO BECOME A CITIZEN AFTER THAT DATE.

THE CLAUSE "WHO OWES ALLEGIANCE TO THE UNITED STATES" WAS ADDED IN AN AMENDMENT TO H.R. 8947 ON THE FLOOR OF THE SENATE FEBRUARY 28, 1938, AND FROM THE DEBATES IT IS CLEARLY APPARENT THE INTENT WAS TO EXEMPT FROM THE RESTRICTION FILIPINOS IN THE SERVICE OF THE UNITED STATES ON MARCH 28, 1938, IN RECOGNITION OF THE FOLLOWING PROVISIONS OF SECTION 2 (A) (1) OF THE PHILIPPINE ISLANDS INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 456:

THE CONSTITUTION FORMULATED AND DRAFTED SHALL BE REPUBLICAN IN FORM, SHALL CONTAIN A BILL OF RIGHTS, AND SHALL, EITHER AS A PART THEREOF OR IN AN ORDINANCE APPENDED THERETO, CONTAIN PROVISIONS TO THE EFFECT THAT, PENDING THE FINAL AND COMPLETE WITHDRAWAL OF THE SOVEREIGNTY OF THE UNITED STATES OVER THE PHILIPPINE ISLANDS---

(1) ALL CITIZENS OF THE PHILIPPINE ISLANDS SHALL OWE ALLEGIANCE TO THE UNITED STATES.

IN THE FIRST SUPREME COURT DECISION CITED IN YOUR LETTER THE COURT STATED (P. 154):

BY ALLEGIANCE IS MEANT THE OBLIGATION OF FIDELITY AND OBEDIENCE WHICH THE INDIVIDUAL OWES TO THE GOVERNMENT UNDER WHICH HE LIVES OR TO HIS SOVEREIGN IN RETURN FOR THE PROTECTION HE RECEIVES. IT MAY BE AN ABSOLUTE AND PERMANENT OBLIGATION, OR IT MAY BE A QUALIFIED AND TEMPORARY ONE. THE CITIZEN OR SUBJECT OWES AN ABSOLUTE AND PERMANENT ALLEGIANCE TO HIS GOVERNMENT OR SOVEREIGN, OR AT LEAST UNTIL, BY SOME OPEN AND DISTINCT ACT, HE RENOUNCES IT AND BECOMES A CITIZEN OR SUBJECT OF ANOTHER GOVERNMENT OR ANOTHER SOVEREIGN. THE ALIEN, WHILST DOMICILED IN THE COUNTRY, OWES A LOCAL AND TEMPORARY ALLEGIANCE, WHICH CONTINUES DURING THE PERIOD OF HIS RESIDENCE.

IN BOTH OF THE OTHER DECISIONS CITED ABSOLUTE AND PERMANENT ALLEGIANCE WAS DISTINGUISHED FROM QUALIFIED AND TEMPORARY ALLEGIANCE. WITH THE EXCEPTION OF FILIPINOS WHOSE STATUS IS FIXED BY THE ACT OF MARCH 24, 1934, SUPRA, THE WORD "ALLEGIANCE" AS USED IN THE STATUTORY RESTRICTION UNDER CONSIDERATION MEANS ABSOLUTE AND PERMANENT ALLEGIANCE TO THE UNITED STATES AS DISTINGUISHED FROM QUALIFIED AND TEMPORARY ALLEGIANCE. OTHERWISE THE STATUTE WOULD BE PRACTICALLY A NULLITY. HENCE, IN APPLYING THE STATUTE, ALIENS RESIDING IN THE UNITED STATES, OTHER THAN FILIPINOS, SHOULD NOT BE REGARDED AS OWING ALLEGIANCE TO THE UNITED STATES. FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM THE RESTRICTION.

REFERENCE IS MADE TO THE ACT OF MAY 16, 1938, PUBLIC NO. 521, ENTITLED "TO CORRECT UNITED STATES CITIZENSHIP STATUS OF CERTAIN PERSONS BORN IN PUERTO RICO, AND FOR OTHER PURPOSES," PRESCRIBING A PROCEDURE WHEREBY CERTAIN PERSONS WHO WERE BORN IN PUERTO RICO AND HAVE NOT BECOME CITIZENS MAY DO SO. ..END :