Lamb v. Kroeger

• Decision Date: 09 March 1943
• Docket Number: 46214.
• Citation: 8 N.W.2d 405,233 Iowa 730
• Parties: LAMB v. KROEGER et al.
• Court: Iowa Supreme Court

8 N.W.2d 405

233 Iowa 730

LAMB v. KROEGER et al.

No. 46214.

Supreme Court of Iowa

March 9, 1943

John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst Atty. Gen., and Clark O. Filseth, County Atty., of Davenport for appellants.

Lane & Waterman, of Davenport, for appellee.

MULRONEY Justice.

The sole question to be determined is whether plaintiff is an honorably discharged soldier of the war with Germany and, as such, entitled to the tax exemption provided in section 6946, Code of Iowa 1939. This section provides for a tax exemption upon "the property, not to exceed five hundred dollars in actual value, of any honorably discharged soldier, sailor marine, or nurse of the war with Germany."

The stipulation of facts relates the following story. Appellee, a resident of Davenport, Iowa, registered under the Selective Draft Act of 1917, 50 U.S.C.A.Appendix § 201 et seq., and on November 9, 1918, he received, by United States Mail from Local Board No. 1 in Davenport, a notice that he had been selected for immediate military service. The notice stated that he should report at 9 A. M. on November 11, 1918 at draft headquarters in Davenport, and it further stated: "From and after the day and hour just named, you will be a soldier in the military service of the United States." The notice was signed by a board member of Local Draft Board No. 1 in Davenport.

Appellee reported to draft headquarters at the hour named on the morning of November 11, and after the roll of draftees was called, one of the draft board members read to all the draftees an order of the Provost Marshal General to the effect that they were "now in the military service of the United States." Appellee was appointed leader of the contingent, by a board member, and the entire contingent went to the Hotel Dempsey, in Davenport, for lunch before entraining for Camp Dodge in Des Moines. While at lunch, a board member arrived and told them that they would not entrain for Camp Dodge because "calls had been cancelled." He also stated that the members of the contingent were dismissed and that written notice of the cancellation would be mailed to each of them.

On November 15, 1918, appellee received, by mail from Draft Board No. 1 in Davenport, a letter stating that by order of the Provost Marshal General all outstanding "calls for the army" had been cancelled and that "all registrants who were inducted but not entrained under such calls are discharged from the army." The letter further stated "that such cancellation in cases of registrants who were inducted has the effect of an honorable discharge from the army."

Thereafter, on or about January 26, 1919, appellee received, by mail from Camp Dodge in Des Moines, a "Discharge from Draft." This discharge certifies that appellee "is hereby discharged from the military service of the United States by order of the President dated November 11, 1918." It also states: "While this certificate discharges the person named herein from his present obligation to serve in the army, it does not operate as a permanent bar to his subsequent entrance into the military service."

On the same date appellee received a voucher from the government for $4 for "final pay."

It was stipulated that appellee had received the exemption from taxation from 1929 to 1939, but that the Attorney General of Iowa had, on February 2, 1922, ruled that the holder of such a discharge from draft was not entitled to the exemption under section 6946, Code of Iowa, 1939.

We must here interpret the meaning of the words "honorably discharged soldier *** of the war with Germany" found in section 6946, Code of Iowa, 1939. This law is a tax exemption law. As such it must be strictly construed to the end that no property shall be exempt except that which clearly and fairly falls within the express terms of the law. Trustees of Griswold College v. State, 46 Iowa 275, 26 Am.Rep. 138. The Iowa rule is probably best stated in Readlyn Hospital v. Hoth, 223 Iowa 341, 272 N.W. 90, 91: "Statutes passed for the purpose of exempting property from taxation must be strictly construed, and, if there is any doubt upon the question, it must be resolved against the exemption and in favor of taxation. The exemption is not to be made by judicial construction, but anyone claiming exemption from taxation under a statute must show clearly that the property is exempt within the terms of the Constitution and the statute."

The above rule announced in the Readlyn Hospital case was quoted with approval in Board of Directors of Ft. Dodge Independent School Dist. v. Board of Sup'rs of Webster County, 228 Iowa 544, 293 N.W. 38.

What did the legislature mean by the words "honorably discharged soldier *** of the war with Germany"? The word "soldier" is defined by Webster's Second International Dictionary as: "One who is engaged in military service as an officer or private; one who serves in an army; one of an organized body of combatants."

Lamb, under this record, was neither an officer nor private in the military service. Did he serve in the army? Was he one of an organized body of combatants? We think not. The army had not accepted him as yet. He had passed no army physical examination. The stipulation of facts contains the following significant language: "It is further stipulated and agreed that all draftees selected by local boards, including the plaintiff, were subject, upon arrival at a mobilization center, to further physical examination before acceptance or rejection by the United States Army. All draftees so examined and accepted were then to be given the Oath of Enlistment in the United States Army; that plaintiff and other members of the contingent never entrained for Camp Dodge, Iowa, which was the proper mobilization center in the instant case, and therefore plaintiff was not subjected to further physical examination, was not given the Oath of Enlistment in the United States Army and was not accepted or rejected by the United States Army at said mobilization center."

True, certain notices he had received from his Draft Board had stated that he was a soldier and that after receipt of the notice he would be in the military service at a certain hour on a certain date, and the discharge from draft he received expressly stated that he was discharged "from the military service of the United States." These notices and instruments are not controlling. We are here concerned with what the Iowa Legislature, not draft law administrators, or United States Government officials, meant by the term "honorably discharged soldier *** of the war with Germany."

The case of Zearing v. Johnson, 10 Cal.App.2d 654, 52 P.2d 1019, 1020, is in point. In this case the California court construed a law giving a tax exemption to "every resident *** who has served in the army *** of the United States in time of war, and received an honorable discharge therefrom ***." The applicant, who was then a resident of Indiana, did go from his Local Draft Board to Camp Dodge, but was there rejected because of physical unfitness. He was given a discharge exactly like the "Discharge From Draft" Lamb received. In holding the applicant was not entitled to the tax exemption, the California Supreme Court stated: "It appears from the face of the discharge from draft and the allegations of the petition that petitioner was merely subject to military law and had an obligation to serve in the army from which he was relieved for proper reasons. It does not appear that he ever served in the army or was ever a part of the army. A person may be subject to military law without being a member of the armed forces of the United States. Bannister v. Soldiers' Bonus Board, 43 R.I. 346, 112 A. 422, 13 A.L.R. 589. An honorable discharge is a formal and final judgment based by the government upon the military record of a member of its armed forces, and a declaration that such person had left the service in a status of honor. United States v. Kelly, 15 Wall. 34, 21 L.Ed. 106. There is no doubt that appellant was released from the obligation to perform active duty under honorable conditions, but in our opinion, this is not a release from active duty. The Attorney General of this state has ruled that a discharge from draft, such as the one in the instant case, is not an honorable discharge within the meaning of the constitutional provision (A.G.O.7656, July 31, 1931), and we are of the same opinion. We concur in that part of the opinion of the Attorney General referred to, in which the Attorney General states: 'From all of the foregoing it would seem to clearly appear that the physical examination, selecting, etc., by the Local Board, were tentative, conditional or preliminary in character, and only ripened into an actual service following physical examination and acceptance by the military authorities after arrival at mobilization camp. If not so accepted a "Discharge from Draft" was given, signifying the refusal of the military authorities to accept the individual named therein for military service."'

It is argued that this case is not authority because of the difference in the statutes. The California statute uses the words "who has served in the army." The Iowa statute gives the exemption to "soldiers *** of the war with Germany." We see no material difference. Can it be argued that the Iowa Legislature meant to give this exemption to anyone who did not serve in the army? The ordinary and accepted meaning of the word "soldier" is one who serves in an army. With this definition the two statutes have the same meaning and the case is in point.

But we are not left to conjecture about what the Iowa Legislature meant. Section 5173, Code of Iowa 1939, providing for the recording of discharges of soldiers, provides for recording without fee when...