provisions of that section. It follows that the question is to be determined by the provisions of said section 1, as it amends section 6 of the act of March 24, 1934, supra, and not by the terms of the export tax law enacted by the Philippine Government to carry such provisions into effect.

The language of the amendatory act is that on and after January 1, 1941, the Philippine Government shall impose and collect an export tax on "every" Philippine article shipped from the Philippines to the United States, "except as otherwise specifically provided in this section." As you point out in your letter, and the Secretary of the Treasury points out in his letter, no specific exception is made with respect to the activities or property-of the United States Government. Did the Congress then, by the use of the word "every," intend to include property of the United States and to authorize an export tax thereon? The Supreme Court said in the Domenech case, supra, that the grant of a general power should not be construed as a consent to tax the sovereign and that nothing less than an act of Congress "clearly and explicitly" conferring the privilege will suffice. The failure of Congress expressly to except property of the United States from the tax does not constitute an act clearly and explicitly conferring the privilege to tax. The word "every" in form is all inclusive, but it is general and not explicit, and as against any conclusion that merely by virtue of such generality it was intended to include property of the United States, there is for application the canon of statutory interpretation that the sovereign is not intended to be affected unless expressly named in the statute or included by necessary implication. See In re Tidewater Coal Exchange, 280 Fed. 648, 650, for a comprehensive discussion of this rule and its application in American jurisprudence. For a recent discussion of the exceptions to the rule see the opinion of the Attorney General dated June 18, 1941, concerning its application to the Soldiers and Sailors' Civil Relief Act of 1910. The present matter seems clearly to fall within the rule and not its exceptions. In Dollar Savings Bank v. United States, 19 Wall. 227, 239, the Supreme Court of the United States said:

It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him in the least, if they may tend to restrain or diminish any of his rights and interests. He may even take the benefit of any particular act, though not named. The rule thus settled respecting the British Crown is equally applicable to this Government, and it has been applied frequently in the different States, and practically in the Federal courts.

In District of Columbia v. American Oil Co., 39 F. (2d) 510, the Court of Appeals of the District of Columbia, citing the said Dollar Savings Bank case, held that a tax law enacted by Congress for the

District of Columbia imposing a tax on "all" motor-vehicle fuels within the District of Columbia, sold or otherwise disposed of by an importer, did not apply to gasoline sold in the District of Columbia for use by various Executive departments and governmental agencies. The Court said:

To sustain the contention of appellant, it must clearly appear that the United States intended to tax itself. See Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80. In our view, the intent of the statute was quite the contrary.

* * *

The circumstances of that case appear closely analogous to those here involved. The Congress as the "supreme legislative body" for the District of Columbia imposed the tax on "all" motor-vehicle fuels sold in the District of Columbia and directed that the proceeds of the tax be paid into the Treasury of the United States to the credit of the District of Columbia to be available exclusively for road and street improvement and repair. The term "all motor-vehicle fuels" there involved is as broad and inclusive as the term "every Philippine article" in the present statute, but that did not overcome the presumption, based on the rule of statutory interpretation stated in the Dollar Savings Bank case, that the United States did not intend to tax itself.

In Dugan v. United States, 34 Ct. Cls. 458, cited in your letter, the Court of Claims held that Army post exchanges "are, in their creation and management, governmental agencies" and sustained a refund of internal revenue taxes paid by the post-exchange officer as a retail liquor dealer. The court said, at page 468:

It has never been the policy of the Government to tax its own enterprises or its own manner or method of doing business; and inasmuch as post exchanges are established and maintained by it for the mental and physical betterment of its troops in garrisons and posts, with resulting, if not immediate, benefit to itself, we think such exchanges are exempt from the payment of special tax for the sale of such articles as the regulations permit.

In Asiatic Petroleum Co. v. United States, 65 Ct. Cls. 100, the Government interposed a counterclaim for the amount of duties alleged to be payable to the Philippine government on fuel oil delivered by a contractor to the Philippines for use of the United States Navy. The court held that as between the government and the contractor the contractor was not liable under the terms of the contract for any duties payable on the fuel oil. The court then proceeded to say:

While not necessary to a decision of the case, it is not inappropriate to state that the court is in extreme doubt as to whether or not the oil in question was dutiable. Whatever may be said as to when the title to the oil passed, as between the parties, such oil for the purposes of the tariff act was the property of the United States at the time of its importation into the Philippine Islands. Is the United States liable for customs duty on property imported by it and for its own use? The act itself is silent on that question. It should be remembered that no duties were demanded until after the full completion of the first contract under which 50,167.6058 tons of oil were delivered and paid for, and until after 14,460.7 tons under the second contract had been delivered.

It can therefore be said that the customs officials themselves did not at first regard this property as dutiable. It should also be noted that when duties were subsequently assessed it was sought to impose same only on that portion of the oil which was delivered into naval tanks at Cavite, and not on the oil discharged directly into the U. S. S. Pecos. Both deliveries were within the jurisdiction of the Philippine Islands. The first section of the act, 36 Stat. 130, provides that the duties therein imposed shall be levied upon "all articles * entering the jurisdiction of the Philippine Islands from any place or places, including the United States and its possessions, and in any manner whatsoever, either with intent to unlade therein, or which, after such entering, are consumed therein or become incorporated into the general mass of property within said Islands

*

The purpose of the statute providing for customs duties on importations into the Philippine Islands was to provide revenue for the use of the Philippine Government, for the protection, and partial support of which the United States held itself responsible. It is inconceivable that Congress in the enactment of the said statute should have intended that the United States would be required to pay duty on its own oil imported into the Philippine Islands, for its own use, in supplying its Navy vessels used in the protection of the Philippine Government, as well as for the maintenance of its own Military and Naval Establishments in the national defense.

Thus, despite the wholly inclusive form of the language used in the Philippine Tariff Act there involved, to wit, "all articles entering the jurisdiction of the Philippine Islands in any manner whatsoever," the court expressed "extreme doubt" whether property of the United States was included and stated it to be "inconceivable" that Congress in the enactment of the statute should have intended that the United States would be required to pay duty on its own oil imported into the Philippine Islands for its own use.

Following that decision the question of paying duties on property imported into the Philippine Islands by the United States Government for its own use was reviewed by this office on a submission by the paymaster general of the Navy and it was held in decision of November 2, 1929, 9 Comp. Gen. 180, that such payments should not be made pending a decision by the Supreme Court of the United States sustaining the legality of such charges or further legislation by the Congress with respect thereto. See also 11 Comp. Gen. 254, to the same effect concerning goods imported into Puerto Rico for the use of the United States Government, and 20 Comp. Gen. 809, holding that certain "ship dues" imposed by ordinance of the Virgin Islands may not legally be assessed against commercial vessels on account of Government-owned cargoes discharged at Virgin Island ports.

By the act of July 3, 1930, 46 Stat. 851, Congress expressly authorized, under stipulated conditions and limitations with respect to the request for services or the use of facilities, the payment on merchandise, etc., consigned to agencies of the United States Government in the Philippine Islands of certain cargo checking and arrastre charges, in the nature of service charges, imposed by authority of the Philippine government, which charges theretofore had been negatived by

decisions of this office on the ground that they purported to be compulsory irrespective of the need or request for the service, and, therefore, were to be regarded as a tax. But it does not appear that the Congress has authorized the payment of import duties negatived by the decision of November 2, 1929, supra, rendered some 12 years ago. The language of the Philippine Tariff Act of August 5, 1909, 36 Stat. 130 "all articles *** entering the jurisdiction of the Philippine Islands" is as broad and inclusive as the language of the export tax provision here involved, "every Philippine article shipped from the Philippines to the United States," and it would be most incongruous to hold that under the first act no import duties may be collected by the Philippine government on property of the United States Government shipped into the Philippines, but that under the second act the United States Government is required to pay the Philippine government an export tax on its property shipped out of the Philippines, unless other provisions of the latter act clearly require that conclusion; and I find nothing in the other terms of the Philippine Independence Act, as amended, showing or indicating any intent that the export tax is to be laid on property of the United States. What little may be indicated in the export tax provisions would point the other way. By section 6 (g) (1) the proceeds of the tax are required to be deposited with the Treasurer of the United States for the payment of Philippine bonds issued prior to May 1, 1934. But that such payments are regarded as obligations of the Philippine government and that the United States Government is not to contribute thereto is shown by the provision in section 6 (g) (5) that on or before July 3, 1946, when United States sovereignty is to be withdrawn, the Philippine government will pay into the trust fund to be established for that purpose any such further amount as may be found necessary to assure payment of such bonds. Section 6 (h) provides that no article shipped from the Philippines subject to the export tax shall be admitted to entry in the United States until the "importer" shall present a certificate of the Philippine government as to the payment of the export tax "or shall give a bond for the production of such certificate within 6 months from the date of entry." While under certain circumstances the United States Government might be regarded as an importer, it certainly could not have been contemplated that the Government should ever be put in the anomalous position of having to give a bond to itself for the later presentation to itself of such a certificate, and it would follow that the legis lation did not contemplate the inclusion of the United States Government as an "importer" within the meaning of the term as there used. While these provisions may not afford conclusive indications of the legislative intent, they certainly do not lend themselves to the view that the Government intended to tax itself to aid in pay

ment of the Philippine bonds, but, on the contrary, they tend to indicate that the Congress did not have in mind that the property of the United States would be subjected to the tax. In the absence of any countervailing provisions clearly showing a legislative purpose to include the property of the United States within the reach of the tax there appears for application the general rule of statutory interpretation that the sovereign is not intended to be bound unless expressly named. District of Columbia v. American Oil Co., supra. For the reasons herein before stated, and pursuant to the principles of the decisions cited, I think any doubt there might be in the matter must be resolved in favor of the conclusion that property of the United States Government shipped from the Philippine Islands is not subject to the export tax provided for in section 6 of the Philippine Independence Act. Accordingly, answering your question specifically, I have to advise that funds appropriated for the Navy Department are not available for the payment of such export tax on the ship cane woven fenders referred to in your letter.

(B-20362)

POSTMASTERS-PAYMENT FOR CIVILIAN LEAVE DURING MILITARY OR NAVAL SERVICE

Postmasters who have been ordered to active military or naval duty--as distinguished from those voluntarily enlisted-and whose offices have been filled by acting postmasters under authority of the act of December 6, 1940, during their absence on such duty, may receive compensation for their accumulated and current accrued leave (not to exceed the 30 days allowable in any one fiscal year under postal regulations) under the authority of the act of August 1, 1941, relating to payment of employees of the United States, etc., for leave in their civilian position concurrently with active military or naval service.

Comptroller General Warren to the Postmaster General, September 19, 1941: I have your letter of September 8, 1941, as follows:

Reference is made to the act of Congress approved August 1, 1941 (Public, 202, 77th Congress), which makes provision for the payment for accumulated or accrued annual leave of employees ordered to active duty with the military or naval forces of the United States.

Your decision is requested as to the applicability of the provisions of this act to postmasters who have been on active military duty since the fall of 1940, having been granted leave without pay for the duration of such service, and whose offices are being administered by acting postmasters appointed and receiving the salary of the office under the provisions of the Act of December 6, 1940 (Public, 887, 76th Congress).

The act of August 1, 1941, Public Law 202, 55 Stat. 616, provides as follows:

That employees of the United States Government, its Territories or possessions, or the District of Columbia (including employees of any corporation created under authority of an act of Congress which is either wholly controlled or wholly owned by the United States Government, or any corporation, all the stock of which is owned or controlled by the United States Government, or any department, agency, or establishment thereof, whether or not the employees thereof are paid from funds appropriated by Congress), who