Lamb v. Kroeger , 233 Iowa 730 ( 1943 )

I am unable to concur. The majority opinion correctly states, as the sole question to be determined, Was appellee an honorably discharged soldier of the war with Germany? — but proceeds to answer it in the negative. I would affirm the decision of the trial court and answer the question in the affirmative.

The majority opinion starts with Webster's definition of the word "soldier." I prefer to take the definition of the United States Government, made in the very act of administering the selective-service act.

The language of the exemption statute should be presumed to have been used in the light of the selective-service law as administered rather than in the light of a general dictionary definition.

The draft officials, from the President of the United States down to the local draft board, assured appellee that he was "in the army."

On November 9th, appellee was ordered (by written notice) to report for "induction into military service" and the notice stated that "from and after the * * * hour just named [hour of induction] you will be a soldier in the military service of the United States." (Italics supplied.) It is true, as the majority opinion points out, that the notice was signed by a member of the local draft board, but it was denominated as an "Order of Induction into Military Service of the United States" and purported to be done in the name of "The President of the United States." Is it for us to place against this express language the dead definition of a lexicographer? I think not.

On November 11th he was "inducted into the military service" and again was told: "You are now in the military service of theUnited States." (Italics supplied.) This instruction was given expressly "By Command of the Provost Marshal General."

That day Germany suddenly admitted the futility of further fighting. The armistice was signed.

General Crowder, the Provost Marshal General, promulgated the President's order:

"The President further directs that all registrants who arealready inducted into the Army * * * but who have not beenactually entrained for a mobilization camp, shall be, and theyare hereby, discharged from the Army." (Italics supplied.)

On or about November 14th appellee received from his local board a written communication which was issued "By order of the Provost Marshal General acting under the instruction of the President of the United States," and which contained this language:

"Accordingly all registrants who received notices to appear for induction under such calls, or who appeared and were inducted butnot entrained, are notified that the undersigned Boards have cancelled all such notices and orders of induction, and that suchcancellation in cases of registrants who were inducted has theeffect of an honorable discharge from the army." (Italics supplied.)

On or about January 26, 1919, appellee received by mail his so-called "Discharge from Draft," which stated that he was "discharged from the military service of the United States by order of the President dated November 11, 1918."

These are the salient facts upon which this court is required to say whether appellee is "an honorably discharged soldier of the war with Germany" within the meaning of the tax-exemption statute. Appellee received final pay for his military service. He was allowed the tax exemption for the years 1929 to 1939 both inclusive.

It has seemed to me the express language of these various documents and orders completely answers the contention of the appellant board of supervisors. If appellee was "in the army" or "in the military service" for any purpose he was a "soldier," even within the dictionary definition cited in the majority opinion. That opinion dogmatically asserts he "was neither an officer nor a private." The President, the Provost Marshal General, and the draft board all thought differently. The whole procedure indicates the intention to make the time of induction the commencement of military service.

The fact that appellee's term of service was short makes no difference in principle. It cannot be argued merely because he never went into action that he never "served." The word has no such narrow meaning. "They also serve who only stand and wait." Appellee was available for such duty as would be assigned him. That the war ended before he reached the mobilization camp did not affect his status in the opinion of his government. I think it should make no difference in ours. The entrainment for mobilization, the taking of further physical tests, and the oath of enlistment were all acts which he, as a soldier, would have had to perform at the appropriate time, just as he would have had to perform many other acts and duties as a soldier if the armistice had not intervened. He "served" just as surely as did thousands of others who took the oath of enlistment but never left the mobilization center.

We believe the decision of the United States Court of Appeals of the District of Columbia in Hurley v. Crawley,60 App. D.C. 245, 50 F.2d 1010, should be followed here. That was a mandamus proceeding to obtain preferential status as an "honorably discharged soldier" under civil-service rules. Petitioner's status in the draft was exactly the same as that of appellee here. His service terminated before he was ever "accepted." Apparently, he never reached the stage of taking the oath of enlistment. The court in that case called attention to the very documents and orders which I have just described and construed them as I have tried to construe them. It was there held he was an "honorably discharged soldier."

The majority opinion dismisses the Hurley v. Crawley case with two observations: First, that the opinion in that case "seemed to be partly based upon the fact that the drafted man performed military duties for approximately nine weeks"; and second, that the statute there under consideration was a civil-service-preference and not a tax-exemption statute.

The answer to the first suggestion is found in the facts stated in the opinion itself. The soldier reached the mobilization camp September 3d. The next day he was admitted to the base hospital, from which he was discharged September 26th. He went back to the hospital October 3d and remained until November 9th, when he was found physically disqualified for service. During the brief interval between September 26th and October 3d his duties included moving of hospital cots and similar acts. He never tookthe oath, never passed the final examination, and was never"accepted" by the army, under the opinion of the majority here. Yet the United States Court of Appeals held he was an "honorably discharged soldier." His status was exactly the same as that of appellee.

But it is suggested the statute in question in that case was one subject to "liberal" construction and that this is a "tax exemption" statute and must be "strictly" construed. I am not sure that this distinction is anything more than theoretical. Both statutes were intended as furnishing some reward for patriotic service. The quantity of service is not attempted to be measured by either. I can see no logical reason for a strict construction when the reward offered is exemption from tax and aliberal construction when it is a civil-service preference or a soldier's bonus.

It will be found that the "strict construction" theory as applied to tax exemption grows more logically out of cases where the property is either publicly owned or is supposed to be serving some beneficient purpose — religious, educational, or charitable — rather than in cases where the taxpayer is being rewarded for services already rendered. In one, the exemption is to promote the purpose for which the property is used; in the other, it is a personal gratuity or reward to the owner. I have found no instance in which it has been applied in case of claims under soldiers'-exemption statutes. A distinction of this kind could well be made where the purpose of the exemption is similar to that of a bonus statute or one for civil-service preference.

The majority opinion cites Zearing v. Johnson, 10 Cal.2d 654,52 P.2d 1019, which involved a statute providing a tax exemption to every resident "who has served in the army * * * in time of war," and has been honorably discharged. That decision is based largely on Bannister v. Soldiers' Bonus Board, 43 R.I. 346,112 A. 422, 13 A.L.R. 589. There is no suggestion that it depended on a strict construction because a tax-exemption statute was involved.

The Bannister case was not a tax-exemption case. It involved a statute that used the words, "who was mustered into the federal service and reported for active duty." The Rhode Island court evidently made a distinction between being "inducted" and being "mustered."

I think the Hurley v. Crawley case should be followed here rather than the California and Rhode Island cases.

The majority opinion refers to the attorney general's opinion of February 2, 1922, and insists that the legislature is presumed to have known of it during all these years in which the law was never amended and clarified. This claim is based upon John Hancock Mut. L. Ins. Co. v. Lookingbill, 218 Iowa 373,253 N.W. 604. That case cites numerous others to the proposition that courts give weight to constructions placed upon statutes by executive officers whose duty it is to enforce them, and argues that legislatures are presumed to know of such constructions. No case is cited which attempts to charge legislatures with constructive notice of attorney general's opinions. I doubt if the presumption goes that far. If weight is to be given to "constructions placed upon statutes by executive officers whose duty it is to enforce them," it might be well to ponder the fact that this plaintiff was allowed the exemption for over ten years by such officers.

The writer of the opinion in the John Hancock Insurance Company case also wrote the opinion in In re Assessment of Simmons Warehouse Co., 229 Iowa 191, 294 N.W. 286. In the latter case this court construed section 7129.1, Code, 1939, exactlycontrary to a construction that had been placed on it by an attorney general's opinion, and without any suggestion that the legislature had had opportunity to amend and clarify the statute if displeased with the construction by the attorney general, andwithout even a reference to the attorney general's opinion. The majority here well says, as to its argument on this ground: "We do not think it controlling." I think that a masterpiece of understatement.

It is conceded the appellee was subject to military law at the time of his discharge. I am impressed with the observation of the circuit court of appeals in the Hurley v. Crawley case, supra, at page 1012 of 50 F.2d:

"Can the military authorities demand and obtain a wide and liberal construction of penal provisions, incidentally necessary to the execution of a great purpose, and, at the same time, a narrow and exclusive construction of remedial provisions created by Congress and the President in their mercy? We think not."

That statement could well be paraphrased here. This exemption law was a generous gesture by the State of Iowa toward men who had been in military service. No distinction was made between men who actually had been in battle and those who had just crossed the threshold to military service when the war ceased. Appellee's own government classified him as a "soldier." I think he was one within the intention of this statute.

I would affirm.