United States v. Husband R.(Roach)

• Decision Date: 30 December 1971
• Docket Number: No. 29045.,29045.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Howell HUSBAND R. (ROACH), Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 1054 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Howell HUSBAND R. (ROACH), Defendant-Appellant.

No. 29045.

United States Court of Appeals, Fifth Circuit.

December 30, 1971.

George Leppert, New Orleans, La. (Court Appointed), for defendant-appellant.

Wallace D. Baldwin, Acting U. S. Atty., Cristobal, Canal Zone, Rowland K. Hazard, U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Before GODBOLD, CLARK and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant, a bus driver and a citizen of the Republic of Panama, was fined $10 for operating a passenger bus within the Panama Canal Zone in violation of a regulation of the Canal Zone relating to use of highways, roads and streets.¹ But the issues are of much wider scope and difficulty than relief from a $10 traffic fine.

Appellant and the owner of his bus are members of a loose association composed of around 30 owners and drivers, citizens of the Republic of Panama, who operated 15 passenger buses which were based in the Republic. The buses operated on a fixed route the beginning and ending points of which were in the Republic, but which passed through part of the Canal Zone. For many years, extending at least as far back as World War II, bus service in the Canal Zone was furnished by both operators holding nonexclusive franchises granted by the Governor, and nonfranchised operators. In early 1959 the franchised operator, a single company formed by an amalgamation of several franchised companies, and operating wholly within the Canal Zone, was faced with the necessity of granting wage increases mandated by the Fair Labor Standards Act.² Civil affairs agencies of the Canal Zone concluded that the company's projected revenues would no longer cover expenses. At that time the franchised company was operating about 55 buses, and from 380 to 400 nonfranchised buses were operating in the Canal Zone. The bus driven by appellant, and presumably all or most of the other nonfranchised buses, were based in the Republic of Panama, driven by Panamanian-licensed drivers and with Panamanian plates (recognized in the Canal Zone),³ and inspected under the laws of the Republic.

After considering and rejecting other alternatives for financial relief of the franchised company, such as fare increases and elimination of unprofitable routes, Canal Zone officials chose the solution of restricting the operation of nonfranchised buses so that the franchised company would have exclusive or almost exclusive access to several areas where the number of persons using bus service was highest. Accordingly the government amended the traffic regulations of the Canal Zone, § 167.496(a) of Canal Zone Administration and Regulations. Officials estimate that around 28 of the independent buses were affected by the amendment.⁴

The day after the amendment became effective appellant was arrested on a Canal Zone highway while driving his bus along its usual route and in one of the areas newly reserved to the franchised company. He was convicted in Magistrate's Court of operating his bus in violation of the regulation, a misdemeanor, and fined $10. He appealed to the United States District Court for the District of the Canal Zone,⁵ where, in a trial de novo without a jury,⁶ he was again found guilty and fined $10, from which conviction he appeals to this court. He contends here, as he did in the District Court, that the regulation is invalid and that it violates due process under the Fifth and Fourteenth Amendments.

The controversy concerns the authority of the Governor to issue traffic regulations generally, and, more particularly, his authority to amend § 167.496(a) and his authority to enter regulations relating to buses moving from the Republic into the Canal Zone and returning to the Republic. Because of the complexity of these questions arising under the unusual governmental structure of the Canal Zone, and because the controversy touches the delicate area of relations between the Canal Zone and the Republic of Panama, we have called for additional briefs from the parties. Necessarily we have relied in part upon the office of the U. S. Attorney for the District of the Canal Zone for source materials often obscure and not generally available.

Throughout this appeal the government has maintained that having failed to particularize any liberty or property right of which he might have been deprived, appellant lacks standing to challenge the regulation he has violated on the ground that it deprives others of their liberty or property without due process. However, we do not understand appellant to be basing his standing on rights other than his own. He raises a fundamental due process claim that his conviction deprives him of liberty by virtue of a regulation the promulgating authority lacked power to pass or which bore no reasonable relation to a proper governmental function.

1. History and structure of the Canal Zone Government.

In 1903 a convention was negotiated between the Republic of Panama and the United States for the construction of a ship canal across the Isthmus of Panama.⁷ Article II of that treaty "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." Article III "grants to the United States all the rights, power and authority within the Canal Zone . . . 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." In 1936 the United States and Panama concluded a General Treaty of Friendship and Cooperation, supplementing the 1903 Convention.⁸

The Canal Zone is an unincorporated territory of the United States. Laws applicable in the Canal Zone are enacted by the Congress—there is no local legislature. Luckenbach Steamship Co. v. Panama Canal Co., 196 F.Supp. 835 (D.C.C.Z.1961), aff'd, 303 F.2d 252 (5th Cir. 1962). The "organic act" for the Canal Zone is the Panama Canal Act of August 24, 1912, 37 Stat. 560, 2 C.Z.C. § 1, et seq., which was incorporated into the Canal Zone Code, effective June 19, 1934, and reenacted in the revised Canal Zone Code, effective January 2, 1963, 76A Stat. 1.

The Canal Zone Government is an independent agency of the United States established by Congress which "shall be administered, under the supervision of the President or such officer of the United States as may be designated by him, by a Governor of the Canal Zone." 2 C.Z.C. § 31. The Government is "charged, except as otherwise provided by law, with the performance of the various duties connected with the civil government, including health, sanitation, and protection of the Canal Zone." Ibid. Congress has provided further that the Governor of the Canal Zone shall: "(1) have official control and jurisdiction over the Canal Zone; and (2) perform all duties in connection with the civil government of the Canal Zone, which is to be held, treated and governed as an adjunct of the Canal." 2 C.Z.C. § 33. The Governor is appointed by the President by and with the advice and consent of the Senate and serves for four years and until his successor is appointed and has qualified. 2 C.Z.C. § 32.

We have, of course, kept in mind the possibility that either the existence, or the exercise by the Governor, of authority over operation of passenger buses in the status of that operated by appellant might conflict with some treaty or agreement between the Republic of Panama and the United States (or the Canal Zone Government). Counsel have pointed us to none, and we find none.⁹

2. The Canal Zone "bill of rights," and its application to appellant.

The provisions of 1 C.Z.C. § 31, setting forth rights and guarantees having applicability in the Canal Zone, are patterned upon the Bill of Rights of the Constitution, including the Fifth Amendment. A statutory "bill of rights" enacted by Congress for an unincorporated territory such as the Canal Zone is to be given the same construction as that accorded the equivalent provisions of the Constitution. In discussing the "bill of rights" enacted by Congress for the Philippine Islands, the Supreme Court said:

How can it be successfully maintained that these expressions of fundamental rights, which have been the subject of frequent adjudications in the courts of this country, and the maintenance of which has been ever deemed essential to our government, could be used by Congress in any other sense than that which has been placed upon them in construing the instrument from which they were taken?

It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body.

Kepner v. United States, 195 U.S. 100, 124, 24 S.Ct. 797, 49 L.Ed. 114, 122 (1904). See also South Porto Rico Sugar Co. v. Buscaglia, 154 F.2d 96, 100 (1st Cir. 1946); Ballester-Ripoll v. Court of Tax Appeals of P. R., 142 F.2d 11, 18 (1st Cir.), cert. denied, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581 (1944).

In areas under the jurisdiction of the United States to which the Fifth Amendment is applicable, an alien is entitled to its protection to the same extent as a citizen. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Appellant, though an alien, was validly within the Canal Zone. By 2 C.Z.C. § 841, Congress has authorized the President to "prescribe, and from time to time . . . amend, regulations governing the . . . rights of persons to enter, remain upon or pass over any part of the Canal Zone." The President's authority in this area has been delegated by him to the Secretary of the Army, 35 CFR 3.1(b), who has promulgated regulations governing the exclusion and deportation of...