The opinion of the court was delivered by: Perry, District Judge.
The petitioner's motion for summary judgment presents for
judicial determination the question as to whether or not a member
of the armed forces, who is recalled to active duty from his home
in Pennsylvania and assigned to such duty at Army headquarters at
Chicago, Illinois, and who subsequently secures living quarters
for himself and his family in a suburban village, is exempt from
the payment of a vehicle tax in that suburban village by virtue
of the provisions of Section 514 of the Soldiers' and Sailors'
Civil Relief Act, as added by section 17 of the Act of Oct. 6,
1942, 50 U.S.C.A.Appendix, § 574. A search has revealed no
adjudicated cases under this particular section and is,
therefore, one of first impression. The facts are not disputed;
respondent has filed no counter-affidavits.
This cause was removed to this court from the Police
Magistrate's court for the Village of Park Forest, County of
Cook, State of Illinois, upon the petition of F.H. Woodroffe,
after the petitioner had been summoned to appear before the
latter court on a charge of failure to display on the windshield
of his automobile a Park Forest vehicle sticker or license.
Removal was effected pursuant to the provisions of 50 U.S.C.A. §
The petitioner contends that, by virtue of Section 17 of the
Soldiers' and Sailors' Civil Relief Act, he is exempt from the
requirement of the Park Forest ordinance relating to vehicle
taxes. On February 21, 1952, a writ of certiorari issued to the
Police Magistrate's court for the village of Park Forest
commanding that that court forward to this court the entire
record in the cause then pending against the petitioner. Bond was
duly made by the petitioner and his surety.
Petitioner's affidavit discloses that he is a Captain in the
Army of the United States, presently assigned by virtue of
military orders to Headquarters, 5th Army, Chicago, Illinois.
Previous to this assignment Captain Woodroffe had been assigned
to the Office of the Illinois State Senior Instructor, Organized
Reserve Corps, Navy Pier, Chicago, Illinois, having been
transferred to that station from a prior post with 2nd Army
Headquarters, Ft. Meade, Maryland, pursuant to valid military
orders, dated April 30, 1948.
For a period of approximately four months after his assignment
to the 5th Army area, petitioner resided on the south side of the
City of Chicago, and on September 3, 1948, he obtained living
quarters for himself and his family in Park Forest, Illinois,
renting these premises from American Community Builders, Inc.,
owner and developer of the Park Forest Community. Pursuant to the
fixed practice and policy of American Community Builders, Inc.,
the petitioner signed a lease renting these premises for a period
of three years from September 3, 1948. When that lease expired,
Captain Woodroffe entered into a new lease, again in accordance
with the landlord's policy and practice, for a one year period
from September 3, 1951. He chose these premises in this village
because they were the only available accommodations for him and
his family after he was assigned to military duty in the Chicago
area. Affidavits of the petitioner and the personnel officer for
5th Army Headquarters indicate that the petitioner is presently
in the military service in the Chicago area solely as a result of
military orders issued by competent authority, and not through
any choice or request on his part.
For the past year, Captain Woodroffe has been listing his
permanent residence as 40 Neeld Lane, Green Ridge, Delaware
County, Pennsylvania, the home of a close boyhood friend of his,
a certain Kenneth Scott. Prior to making the Kenneth Scott
address his permanent residence was 460 Burnley Lane, Drexel
Hill, Delaware County, Pennsylvania, the home of his
parents. At the time of his recall to active service on August
29, 1947, the petitioner was residing at Drexel Hill,
His army personnel records have always reflected that the
petitioner's permanent residence is Delaware County,
Pennsylvania, at the addresses aforesaid. When Captain Woodroffe
is not on overseas duty, he visits at the home of his friend,
Kenneth Scott, two or three times each year. He receives mail
there, and there is always available to him a room at the Scott
address. Each year Captain Woodroffe files his federal income tax
return with the Collector of Internal Revenue at Philadelphia,
Pennsylvania. He has never filed any income tax return with any
other Collector of Internal Revenue.
The State of Pennsylvania imposes no income tax, poll tax, or
personal property tax. Neither Green Ridge, nor Drexel Hill, nor
Delaware County imposes a vehicle or personal property tax.
The petitioner owns no property in the State of Pennsylvania at
present, but he did from 1941 to 1942 own his home in Upper
Darby, Delaware County, Pennsylvania, which property he sold when
he entered the military service in 1942. In 1948, Captain
Woodroffe purchased a home in Harundale, Maryland, and lived
there for approximately five months while he was stationed on
military duty at Fort Meade, Maryland. The petitioner still owns
this property, and he retains it for investment purposes. That
property is presently leased, and the petitioner pays an annual
real estate tax on this Maryland property.
Captain Woodroffe voted by absentee ballot from London,
England, in the general election of 1944 in Pennsylvania, which
voting was made possible by the Federal Soldiers Vote Law of
1944, 50 U.S.C.A. § 321 et seq. Since that time, he has not voted
in Pennsylvania because, in the absence of a federal statute,
Pennsylvania does not permit absentee balloting.
Prior, however, to the general election of 1944, the petitioner
always voted at his home in Delaware County, Pennsylvania,
whenever it was physically possible for him to do so. He has
always been a registered voter in Delaware County, Pennsylvania,
but he is without information or belief as to whether he is
presently carried on the rolls of registered voters in Delaware
County inasmuch as Pennsylvania has no permanent registration
law. He has never registered as a voter at any place other than
in Delaware County, Pennsylvania.
Approximately two or three years ago, the petitioner was
persuaded to vote in a Park Forest school board election. He did
not register for this election inasmuch as the pertinent Illinois
statute does not require that a voter in a school board election
be registered. It was repeatedly emphasized to Captain Woodroffe
that the only requirement for voting in the school election was
that a person live for one year within the school district. He
was assured by various officials that he would not be
jeopardizing his Pennsylvania domiciliary status if he
participated in that election. He did not intend to effect any
change in his domicile and residence by so voting. Neither of the
petitioner's children is of school age, and he had no interest in
the outcome of the election.
Captain Woodroffe has now, and always has had Pennsylvania
state license tags on his automobile, except for the year 1946.
In that year, the petitioner purchased an automobile shortly
before going overseas and there was not time to obtain
Pennsylvania tags. Inasmuch as he was leaving for his overseas
post from the State of New Jersey, and he could obtain New Jersey
license plates immediately upon paying therefor, the petitioner
purchased New Jersey plates for convenience. The petitioner has
now, and always has had a driver's license issued by the State of
Pennsylvania. He has never had any other driver's license.
Revenues collected upon the sale of state license plates in
Pennsylvania are used for the same purposes as revenues collected
upon the ...