233 F2d 320 Lamkin v. Brown and Root

233 F.2d 320

Richard C. LAMKIN and Anthony B. Silvia, Appellants,

v.

BROWN AND ROOT, Inc.; Pacific Bridge Company, Inc.; Maxon Construction Company, Inc.; Utah Construction Company, Inc.; and Swinnerton and Wallberg, a co-partnership, Joint Adventurers doing business under the name of Brown-Pacific-Maxon, Appellees.

No. 14772.

United States Court of Appeals Ninth Circuit.

April 19, 1956.

Finton J. Phelan, Jr., E. R. Crain, Agana, Guam, Thomas F. Jenkins, San Francisco, Cal., for appellant.

H. Brian Holland, Asst. Atty. Gen., I. Henry Kutz, Ellis N. Slack, Attys., Dept. of Justice, Washington, D. C., H. G. Homme, Jr., U. S. Atty., Agana, Guam, for appellees.

Howard D. Porter, Atty. Gen., Louis A. Otto, Deputy Atty. Gen., Leon D. Flores, Island Atty., Government of Guam, Agana, Guam, amicus curiae.

Before HEALY, FEE, and CHAMBERS, Circuit Judges.

HEALY, Circuit Judge.

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1

By this suit appellants sought to enjoin their employers (appellees) from complying with income tax levies of the Territory of Guam by withholding sums payable to appellants as wages for services in the construction of military installations on the Island.

2

Appellees moved for and were granted summary judgment of dismissal. It appears that no genuine issue of fact existed in the case, so that summary judgment was in order if the court's view of the law was correct. Appellants' contention is that there is no law providing for a territorial income tax, hence no valid collections thereof can be made by the territorial authorities. This suit is the latest of a series unavailingly brought in the district court for Guam, and appealed here, ringing the changes on that same general theme. The first of these cases was Laguana v. Ansell, D.C., 102 F.Supp. 919, affirmed by us on appeal, 9 Cir., 212 F.2d 207, certiorari denied 348 U.S. 830, 75 S.Ct. 51, 99 L.Ed. 654.

3

The Laguana holding was that Congress intended persons such as appellants here, who earned income for personal services in Guam, to pay the income tax imposed by sections 30 and 31 of the Guam Organic Act, 48 U.S.C.A. §§ 1421h, 1421i, into the territorial treasury to sustain the local government of the Island. Two other cases from the Guam District Court have more recently followed the Laguana holding. These decisions have been affirmed by us, the citations being Wilson v. Kennedy, 9 Cir., 232 F.2d 153, and Phelan v. Taitano, 9 Cir., 233 F.2d 117.

4

For the reasons and on the grounds stated in these several cases, the judgment of dismissal is affirmed.