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October 16, 1952


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. § 738.

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, Pennsylvania.

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 ...

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