agreed with the Governor or with fellow members, in the manner of free legislatures everywhere. The elected legislators also have enacted laws of local applications, which the U.S. Congress has never been forced to annual (48 U.S.C. 14231i), and have levied taxes and appropriated funds sufficient for the ordinary needs of the local government, without resort to Federal assistance. (The Guam Rehabilitation Act, Public Law 88-170, provides Federal loans and grants to the government of Guam for the reconstruction of facilities damaged and destroyed in the devastating typhoons of 1962 and 1963, or facilities never adequately rebuilt after World War II.) On the record, the people of Guam have gained sufficient political maturity and practice in the art of self-government to eliminate from the organic act what may be viewed historically as its transition feature: the Federal appointment of the principal executive officers of Guam. The people of Guam now appear ready, willing, and able to elect their own.

In a number of important respects, the enclosed draft differs from the draft transmitted in 1964 (introduced into the 88th Congress as H. R. 12419), which was based in large part on organic act provisions for the appointed Governor. The substantive revisions of this draft are aimed in the direction of more selfgovernment, with certain Federal controls over the office of Governor being eliminated, while local checks and balances over his office are correspondingly increased.

The draft calls for the Lieutenant Governor to be an elected official, rather than an appointee of the Governor.

The draft provides that the Governor shall be subject to recall by the people of Guam, as well as providing for his removal by the President for cause.

Some of the emergency powers of the appointed Governor that were authorized in the Organic Acts of Guam and the Virgin Islands are inappropriate for an elected local official, not supervised by the President or his designee, and they have been eliminated or curtailed. Thus, the elected Governor will not be permitted to grant respites for offenses against the laws of the United States, nor to suspend the writ of habeas corpus.

More specifically:

1. Section 1 of the bill, by amendment to section 6 of the Organic Act of Guam, provides for the popular election of the Governor, and Lieutenant Governor of Guam in November 1966, and defines the scope of the Governor's authority.

An elected Lieutenant Governor, in contrast to a government secretary appointed by the Governor, will insure administration of Guam by an elected official in the event of temporary absence of its Governor or permanent vacancy of his office. An elected Lieutenant Governor has been expressly requested by the Government of Guam.

A majority vote is required to elect, and a run-off will be held in case a majority is not obtained in the first election. "Personality" factions may develop in a small community resulting in a proliferation of factional candidates, which would make possible the election of a Governor with little popular support if election by majority vote were not required.

The Governor and Lieutenant Governor always will be members of the same party because under the terms of the bill voters are required to cast one vote for both offices, as in the State of New York (New York Constitution, art. IV, sec. 1). The Governor will hold office for 4 years, but to coordinate the term of a Guam Governor with the presidential election cycle the first elected Governor will serve for only 2 years. Election of a Governor in Guam at the same time a President is elected in the United States will permit candidates in Guam, if they choose to do so, to identify with the program and candidates of one of the national political parties. In this way, the Guam electorate will be better informed of the political philosophy of the candidates, and the policies each is likely to follow as Governor, than would be the case if only local issues-to impose or remove a particular excise tax, to build the next new school in Agat or Sinajana-were to be debated in an off year. The date of the general election is established in section 10 of the Guam Organic Act.

To qualify for election as Governor or Lieutenant Governor, a candidate must have been a U.S. citizen and bona fide resident of Guam for 5 years immediately preceding the election, must be able to read and write English, and must be at least 30 years old or have his 30th birthday on or before the beginning of his term. With one principal exception (pertaining to the writ of habeas corpus, and discussed below), the duties expressly assigned to the Governor do not depart significantly from the similar powers and duties of an appointed Governor in the Guam Organic Act (or in the later-enacted Revised Organic Act of the Virgin Islands). The appointive powers of the Governor, except as limited by applicable Federal law or the civil service statutes of Guam, have been transferred,

after the pattern of the Revised Organic Act of the Virgin Islands, from section 9(b) to section 6, where the powers and duties of the Governor are related to both Federal law, local law, and other branches of the government of Guam. An elected Governor will not be authorized to call out the militia to prevent or suppress violence whenever it becomes necessary unless the violence is “lawless” (cf. Hawaii, Constitution, art. IV, sec. 5; Alaska, Constitution, art. III, sec. 19). However, martial law, which may be declared under the provisions of this draft, as under the Organic Act of Guam, "in case of rebellion or invasion or imminent danger thereof, when the public safety requires it" may be revoked by the legislature, meeting forthwith on its own initiative, and not by the President of the United States (cf. Puerto Rico Constitution, art. IV, sec 4). It is more in keeping with the pattern of local self-government to provide local checks and balances over the actions of an elected Governor. It should be noted, however, that an improper exertion of military power by the Governor of Guam would be subject to judicial inquiry and may be enjoined, if deemed to invade rights secured by the Organic Act of Guam or by any portions of the Constitution of the United States now or hereafter made applicable in Guam (Sterling v. Constantin, 287 U.S. 378 (1932); Balzac v. Porto Rico, 258 U.S. 298 (1922); Mora v. Mejias, 206 F. 2d 377 (1st Cir. 1953); sec. 6 of the enclosed draft).

The elected Governor will not be granted the power, which was granted to the appointed Governor under the Guam Organic Act, to suspend the writ of habeas corpus, even in cases of invasion or rebellion when martial law may be declared. Presently in Guam, as in the United States, the writ of habeas corpus may be suspended, in such emergencies, when the public safety requires it (Guam Organic Act, sec. 5(1), U.S. Constitution, art. 1, sec. 9).

The power to suspend this most fundamental right is generally viewed as a legislative and not an executive power, except in those instances when the President acts as Commander in Chief, and then only in the area, and during the period of, actual military operations (25 Am. Jur., Habeas Corpus, sec. 8; Corwin, "The Constitution and What It Means Today," 1951, p. 70; Ex parte Milligan, 4 Wall. 2 (1866)). The declaration of marital law may be viewed as an ipso facto suspension of the writ, or at least of the requirement to comply with the writ; on the grounds of necessity, a military commander has an unquestioned power "simply to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war" (Duncan v. Kahanamoku, 327 U.S. 304, 314 (1946)). In declaring martial law, the elected Governor will be authorizing his own militia to act vigorously in case of actual or threatened rebellion or invasion, but not to supplant civilian courts with military tribunals, if conditions permit civilian courts to function (Duncan v. Kahanamoku, op. cit., Ex parte Milligan, op. cit.).

The federally appointed Governors have been given extraordinary powers under the Guam (and Virgin Islands) Organic Act to call upon the U.S. Armed Forces, which, with reference to the Army and the Air Force, is a power expressly prohibited, without special authorization, to local officials, such as elected Governors, by the provisions of 18 U.S.C. 1385. Because of the remoteness of Guam from the mainland and because of the absence of a local military force such as a State National Guard unit, we believe that this authority should be continued. The bill therefore permits the elected Governor to request assistance from the local military commanders in emergencies, and the Governor's request may be made directly, as 18 U.S.C. 1385 might otherwise forbid, without prior clearance through Washington. The draft bill makes it clear that the local military commander will not be required to respond to the Governor's request, but may give such assistance if it is not disruptive of his military commitments or inconsistent with his Federal responsibilites, including policy directives from the President as his Commander in Chief. The commander's decision not to render such assistance will be entirely at his discretion. Although the Governor of Guam will no longer be able to call for the use of the armed services as a matter of right, the President will be authorized to use the U.S. Armed Forces to enforce Federal laws or to suppress rebellion in Guam exactly as he is authorized to use such forces for such purposes in any State of the United States, either on his own initiative or at the request of the legislature or the Governor. Section 6 of the proposed bill therefore provides, by appropriate amendment of Federal military law, that for the purposes of chapter 15 ("Insurrection") of title 10 of the United States Code, "State" shall include the possession of Guam.

As technical amendments, the draft bill authorizes the elected Governor to issue executive orders, as well as regulations, not inconsistent with any applicable law. He is also authorized to give expression to his views as well as to make legislative proposals to the legislature.

The Secretary of the Interior, as head of the civilian department or agency designated by the President under section 3 of the organic act, no longer will have supervisory authority over the Governor's exercise of his powers, nor will the Secretary or the President delegate functions to the elected Governor, except as may be authorized by other acts of Congress (see, for example, 44 U.S.C. 82). Relations between Guam and the Federal Government, however, will remain "under the general administrative supervision" of the Secretary of the Interior, as head of the Department designated under section 3 of the Guam Organic Act (48 U.S.C. 1421a). The elected Governor, as is presently the case with the appointed Governor, will be required to report annually to the Congress on the transactions of the government of Guam. For administrative convenience, the annual report as well as any other reports required to be made to Federal agencies will be channeled through the Department of the Interior.

The draft bill establishes the office of Lieutenant Governor and eliminates the appointed government secretary. The person elected as Lieutenant Governor should be, after the pattern of the draft, a person fully qualified to act as Governor or to assume the office of Governor in the eventualities set forth in section 3. Accordingly, the duties of the elected Lieutenant Governor are not specified, and he may be assigned whatever duties the elected Governor or the Guam Legislature provides, and he has been relieved of the ministerial duties of the appointed government secretary.

2. Section 2 of the proposed bill makes an important revision in the organic act. The appointed Governor and government secretary now serve for 4 years but may be removed by the President (cf. S. Rept. 2109, 81st Cong., 2d sess., p. 5). In the enclosed draft the elected Governor is made subject to removal by the President for cause and also by his own electorate by the recall process. The recall provision provides that the Governor may be recalled by a 75-percent vote in a special referendum, which may be initiated either on petition of 25 percent of the registered voters of Guam or by a two-thirds vote of the legislature in favor of referendum. In part, the provision parallels section 8 of article III of the constitution of Michigan, which permits recall upon petition of 25 percent of the voters; however, the voters in a Guam referendum may include all persons registered to vote and not merely, as in the case of Michigan, persons who voted in a prior election. In part, the provision parallels a provision recommended by the Constitutional Convention of the Virgin Islands, which will be considered in formulation of the anticipated companion bill for popular election of the Governor of the Virgin Islands. As the convention recommended, the referendum may be initiated by a two-thirds vote of the legislature as well as by voters' petition to the legislature. This provision protects a Governor elected by a slim majority, since he cannot be recalled by any slight shift in the winds of public opinion, but only by a very substantial 75-percent vote against him. A recall would be a controversial subject, with a high percentage of voters registering an opinion on the important issue; however, if apathy among the Governor's erstwhile supporters leaves decision in the referendum mainly to opposition voters, the nonsupport of the former plus the registered opposition of the latter also will justify his recall. It may be noted that the recall procedure does not necessarily, in the manner of impeachment, inpugn the character of the Governor, not is it limited to cases of nonfeasance, misfeasance, or malfeasance in office (Wallace v. Tripp, 101 N.W. 2d 312 (S.C. Mich. 1960)). The details of the recall procedure, such as the minimum period before recall based on conduct in office will be in order, or the content of a recall petition, are matters properly left to local legislation. Removal of a Governor by an impeachment procedure patterned after provisions of the U.S. Constitution (art. I, secs. 2 and 3) or the Constitution of Puerto Rico (art. III, sec. 21) is not deemed suitable for Guam, which has a unicameral legislature and no convenient alternative institution independent of the executive which might initiate impeachment proceedings to be tried by its legislature, sitting on oath or affirmation, in the role of an upper house. A Governor accused of a crime would be subject to a recall action by the people.

3. Section 3 of the proposed bill covers temporary or permanent vacancy in the office of Governor or Lieutenant Governor, or both. In case of a temporary disability or absence of the Governor, the Lieutenant Governor exercises the powers of the Governor, but does not assume his office. In the event the office were to become permanently vacant by reason of the death, resignation or permanent disability of a Governor (or Governor-elect) or recall of a Governor, the Lieutenant Governor (or Lieutenant Governor-elect) will succeed to the office of Governor for the unexpired term. In case of temporary disability or absence of a Lieutenant Governor, the Governor will appoint a government employee to act as Lieutenant Governor, but if the office of Lieutenant Governor is perma

nently vacant, the Governor may appoint any qualified person to be the new Lieutenant Governor, subject to approval of the legislature. The temporary administrator, in case of temporary disability or absence of both Governor and Lieutenant Governor, as well as their successors in case of permanent vacancy in both offices, will be determined under local law. Territorial legislation could be enacted to deal with the possibility of controversy as to the permanent disability of any Governor or the fitness of any temporarily disabled Governor to resume the duties of his office.

4. Section 4 of the proposed bill deletes the first three sentences of section 9. The first sentence of section 9 deals with the appointive powers of the Governor and is replaced with a new definition of powers in the new section 6 of the act. The second and third sentences of section 9 give preference to persons of Guamanian ancestry for jobs with the Government of Guam, as well as preference for education and in-service training opportunities offered by the Government of Guam. Removal of this language will bring the Government of Guam employment policy into conformity with the provisions of title VII of the Civil Rights Act of 1964. Private employers on Guam are already covered by the provisions of title VII:

5. Section 5 of the proposed bill replaces all of section 26 of the organic act with a simple provision for payment from local funds of the salaries of all executive, legislative and judicial officials who are employees of the Government of Guam, at rates prescribed by the laws of Guam.

Payment of the salaries of the Governor and Lieutenant Governor from local, instead of Federal funds, at rates established under local, not Federal, law is a logical consequence of the proposed alteration in the Governor's status. Federal payment of salaries of the Legislature of Guam was eliminated by Public Law 89-100, signed July 30, 1965. The U.S. District Court judge, U.S. attorney and marshal will continue to be federally appointed officials, paid from Federal funds (Guam Organic Act, sec. 24).

The proposed draft also will delete entirely from section 26 its paragraph (c); namely, a Federal obligation to pay travel and moving expenses and to provide housing for government of Guam employees recruited outside Guam. Since the fiscal year 1953, such costs have been assumed by the government of Guam and the federally appointed Governors of Guam have not sought appropriations from Congress for this purpose. Deletion of section 26(c) will remove a type of Federal assistance for Guam, but it is assistance which the government of Guam has not utilized for many years. If these sections are not eliminated, it is conceivable that an elected Governor, not under the supervision of the Federal Government, could incur an obligation, enforceable against the United States (28 U.S.C. 1346) by hiring employees from outside Guam for whom the Guam Legislature had not already provided travel and housing appropriations.

6. Section 6 of the proposed bill will guarantee to U.S. citizens not resident in Guam the privileges and immunities of U.S. citizens resident in Guam (U.S. Constitution, art. IV, sec. 2) and will further guarantee to all U.S. citizens in or entering Guam-including the corporations of any of the United States-rights of national citizenship, "such as the right to engage in interstate and foreign commerce, the right to appeal in proper cases to the national courts, the right to protection abroad" (U.S. Constitution, art. XIV, sec. 1; Corwin, op. cit., p. 187). 7. Section 7 of the proposed bill, as noted above, is necessitated by the limitation of authority for the elected Governor of Guam to call upon the U.S. Armed Forces in an emergency. The general military law is amended to authorize the President to call upon Federal or local forces to suppress civil insurrection in Guam as in any State.

8. Section 8 of the proposed bill will alter the elected Governor's powers as of the date he assumes office. Provisions governing the first election of a Governor and Lieutenant Governor, such as the required majority vote or the casting of one vote for candidates for the two offices, will be in effect at the time of the first election. Sections 6 and 7 of the enclosed bill, which might have been proposed independently, as organic act amendments extending to Guam needed provisions of Federal law, will become effective on the date of enactment.

In our view, an elected Governor is so very much desired by the people of Guam that consideration of the proposed bill, followed by early enactment of this or a similar measure to provide an elected Governor for Guam, is a matter of some urgency. We believe that greater autonomy for Guam (with the enumerated safeguards against abuse of autonomy or the elected Governor's powers) is morally and politically right. In addition, an elected Governor for Guam would be clear and unequivocal implementation of U.S. commitments under article 73 of chapter XI ("Declaration Regarding Non-Self-Governing Territories") of the United

Nations Charter. For all the world, not excepting any of the countries represented in the United Nations Committee of Twenty-four, the United States would appear demonstrably at work, extending and improving, even in a tiny island territory thousands of miles from the seat of government, the democracy and constitutional system for which it stands.

The Bureau of the Budget has advised that the presentation to the Congress of this legislative proposal is in accord with the program of the President.

Sincerely yours,

STEWART L. UDALL,
Secretary of the Interior.

A BILL To provide for the popular election of the Governor of Guam, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 6 of the Organic Act of Guam (64 Stat. 384, 386; 48 U.S.C. 1422), is amended to read as follows:

"SEC. 6. The executive power of Guam shall be vested in an executive officer whose official title shall be the 'Governor of Guam'. The Governor of Guam, together with the Lieutenant Governor, shall be elected by a majority of the votes cast by the people who are qualified to vote for the members of the Legislature of Guam. The Governor and Lieutenant Governor shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices. If no candidates receive a majority of the votes cast in any election, on the tenth day thereafter a run-off election shall be held between the candidates for Governor and Lieutenant Governor receiving the highest and second-highest number of votes cast. The first election for Governor and Lieutenant Governor shall be held on November 8, 1966. Thereafter, beginning with the year 1968, the Governor and Lieutenant Governor shall be elected every four years at the general election. The Governor and Lieutenant Governor shall hold office for a term of four years (except that the Governor and Lieutenant Governor elected in 1966 shall hold office for a term of two years) and until their successors are elected and qualified, unless the Governor sooner is removed by recall. The term of the elected Governor and Lieutenant Governor shall commence on the fifth day of January following the date of election. "No person shall be eligible for election to the office of Governor or Lieutenant Governor unless he is able to read and write the English language, is and has been for five consecutive years immediately preceding the election a citizen of the United States and a bona fide resident of Guam and will be, at the time of taking office, at least thirty years of age. The Governor shall maintain his official residence in Guam during his incumbency.

"The Governor shall have general supervision and control of all the departments, bureaus, agencies and other instrumentalities of the executive branch of the Government of Guam. He may grant pardons and reprieves and remit fines and forfeitures for offenses against local laws. He may veto any legislation as provided in this Act. He shall appoint, and may remove, all officers and employees of the executive branch of the Government of Guam, except as otherwise provided in this or any other Act of Congress, or under the laws of Guam, and shall commission all officers that he may be authorized to appoint. He shall be responsible for the faithful execution of the laws of Guam and the laws of the United States applicable in Guam. Whenever it becomes necessary, in case of disaster, invasion, insurrection or rebellion or imminent danger thereof, or to prevent or suppress lawless violence, he may summon the posse comitatus or call out the militia or request assistance of the senior military or naval commander of the armed forces in Guam, which may be given at the discretion of such military commander if not disruptive of, or inconsistent with, his federal responsiblities. He may, in case of rebellion or invasion or imminent danger thereof, when the public safety requires it, proclaim the island, or any part thereof, under martial law. The members of the Legislature shall meet forthwith on their own initiative and may, by a two-thirds vote, revoke such proclamation.

"The Governer shall make to the head of the department or agency designated by the President under section 3 of this Act an annual report of the transactions of the Government of Guam for transmission to the Congress and such other reports at such other times as may be required by the Congress or under applicable Federal law. He shall have the power to issue executive orders and regulations not in conflict with any applicable law. He may recommend bills to the Legislature and give expression to his views on any matter before that body.

"There is hereby established the Office of Lieutenant Governor of Guam. The Lieutenant Governor shall have such executive powers and perform such duties as may be assigned to him by the Governor or prescribed by this Act or under the laws of Guam."