393.1163 Property/114
The Minister in China (Johnson) to the Second Secretary of Legation in China (Atcheson), at Nanking54
Sir: The Legation has received despatch No. 648 of March 9, 1935 from your office entitled “Proposed Municipal Road across the Property of Ginling College”, in which three questions are raised; firstly, the right of the Municipal Government to expropriate land for resale to other parties, secondly, the question whether an educational institution registered with the Ministry of Education, and therefore under Chinese rather than American control, is a Chinese legal person, even though its financial support is derived from the United States and the property it occupies belongs to an American Board of Founders, and thirdly, the degree of diplomatic assistance which such institution is entitled to receive from the American Government.
The general question of expropriation of property is dealt with in the Legation’s circular instruction No. 332 of January 4, 1935, entitled “Eminent Domain—Expropriation”, in which it is stated that:
“The settled attitude of the Department with reference to the question of expropriation is that it would not be inclined to question the right of the Chinese Government to exercise eminent domain over property owned by American citizens in an appropriate case, that is, for a public purpose, but would of course be under the necessity of insisting that just compensation be made for any property taken or damaged, and that there shall be no discrimination in this respect against American citizens.”
A copy of the text of the Chinese Land Expropriation Law, promulgated on July 28, 1928, and a translation thereof made by the Legation, were enclosed with the Legation’s Circular Instruction No. 332 of January 4, 1935, mentioned above. Article I of Chapter I of that Law reads as follows:
“When under the following circumstances there is necessity for expropriating land the State may take action in accordance with this Law:
- “1. Promotion of public enterprises.
- “2. Readjustment of distribution of land for the purpose of developing agriculture and improving living conditions of farmers.”
In Article 2 of Chapter I of the Law it is stated that “Public enterprises covered by item one of paragraph one of the preceding Article shall be limited to one of the following undertakings.” There follows a list of ten enterprises which may be classified as public enterprises. It is possible that the Chinese authorities might maintain that in order to carry out one of these enterprises it would be necessary to expropriate land and resell it to other persons. Although the Legation is of the opinion that American property in general in China should not be expropriated for resale to other parties, it feels that no definite statement can be made on the matter, and that each case of expropriation should be dealt with on its merits as it arises.
A general discussion of the second question is contained in the Department’s instruction to the Legation No. 871 of May 23, 1928,55 a copy of which was enclosed with the Legation’s Circular Instruction No. 252 of June 28, 1928, entitled “Attitude to be adopted by American consular officers towards those American missionary educational institutions registering with the Chinese authorities.” The Legation is not prepared to express an opinion as to whether or not an educational institution registered with the Ministry of Education is a Chinese legal person, without having before it for consideration full details regarding the particular case.
The third question, namely, the degree of diplomatic assistance which such an institution is entitled to receive from the American Government, is dealt with in the Legation’s Circular Instruction No. 252 of June 28, 1928, mentioned above.
It is realized by the Legation that its instructions have not been requested on the three points herein discussed, but it is deemed advisable nevertheless to set forth its views and to cite the several instructions for reference in case the question should again arise.
Very truly yours,
- Copy transmitted to the Department by the Minister in his despatch No. 3511, April 11; received May 18.↩
- Foreign Relations, 1928, vol. ii, p. 570.↩