vehicles but rather to raise revenue for the maintenance of Highwood's streets -- thoroughfares which would be more heavily damaged by heavy commercial vehicles than by light private vehicles.
This conclusion gains further support from Village of Hodgkins v. Margarites, 113 Ill. App. 2d 140, 251 N.E.2d 774 (1st Dist. 1969). The Illinois Appellate Court in Margarites examined a municipal vehicle license ordinance enacted pursuant to the same Illinois Municipal Code provision as Highwood's (Illinois Municipal Code, Section 8-11-4). The Margarites court described the "nature and purpose of a municipal vehicle license fee . . . [as being] not really a license at all . . . [but rather] a revenue measure designed to allow the costs of maintenance of the streets and highways of a municipality to be borne by those who derive the greatest benefit therefrom. . . ." Id. 251 N.E.2d at 776 (emphasis added); see also Buzard, 382 U.S. at 395; United States v. Wyoming, 402 F. Supp. 229, 231 (D. Wyo. 1975) (annual county vehicle registration fee found to "raise revenue rather than merely cover the costs of administration of motor vehicle registration" and thus held not collectible from nonresident servicemen).
The nature of Highwood's fee is further evidenced by the fact that it is an annual fee rather than a one-time sales or use tax. See United States v. County of Champaign, Ill., 525 F.2d 374 (7th Cir. 1975). In Champaign, the government brought an action pursuant to the Civil Relief Act to enjoin Champaign County, Illinois, from taxing mobile homes owned by nonresident servicemen stationed at a nearly Air Force base. The statute in Champaign imposed an annual tax computed on a per square foot basis.
The Seventh Circuit found that collecting the tax from nonresident servicemen was a violation of the Act because it was an "annually recurring tax imposed on the ownership of property," as opposed to "sales or use taxes imposed on a particular transaction". Id. at 377; see also Sullivan, 395 U.S. at 182 (annual license fees raise some risk of double taxation, as do property taxes and, thus, nonresident servicemen are exempted from such fees).
Thus Highwood's vehicle license fee is covered by the Civil Relief Act and cannot be enforced against nonresident servicemen living temporarily in Highwood. Nonetheless, Highwood argues in its response to the government's motion for summary judgment that the enforcement of its ordinance is in compliance with the Act because it adheres to the following guidelines: (1) it dismisses any citation issued to a nonresident serviceman who can prove that he paid a similar fee in his own state of residence (def.resp. to mo. for sum. jdgmt. at 2); and (2) any serviceman who registers a vehicle in Illinois certifies he is a resident of Illinois and is thus subject to Highwood's ordinance (def.resp. at 5).
First, it is clear from Dameron and Buzard that a serviceman need not have paid a similar fee in his home state to be exempted from paying a fee in his host state. The only time prior payment is relevant is where the fee imposed is a "fee, license, or excise" essential to the functioning of the host state's licensing and registration laws. Buzard, 382 U.S. at 395. If a fee is found to be a revenue raising fee, then nonresident servicemen are exempted from paying the fee regardless of whether any similar fee was paid in their home state. Id. (it is from the burden of paying taxes to generate governmental revenue that "nonresident servicemen were to be freed, in the main, without regard to whether their home States imposed or sought to collect such taxes from them") (emphasis added); see also Puerto Rico, 478 F.2d at 456 (if tax was not a "'license, fee or excise,' . . . [the court] need not consider what effect, if any, to give to a serviceman's compliance or noncompliance with the requirements of his home state").
Next, Highwood lacks support for its claim that a serviceman certifies he is a resident or domiciliary of Illinois when he registers his vehicle in Illinois.
A change in domicile is effected only if two elements are satisfied: (1) residing at a new place, and (2) intent to remain there. See, e.g., State of Texas v. State of Florida, 306 U.S. 398, 83 L. Ed. 817, 59 S. Ct. 563 (1939); see also Beers v. North American Van Lines, 836 F.2d 910, 913 (5th Cir. 1988).
For servicemen, the rule is clear that "[a] serviceman is presumed not to acquire a new domicile when he is stationed in a place pursuant to orders; he retains the domicile he had at the time of entry into the service." Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3617 at 566 (1984); see also Deckers v. Kenneth W. Rose, Inc., 592 F. Supp. 25, 27 (M.D. Fla. 1984); Codagnone v. Perrin, 351 F. Supp. 1126, 1129 (D. R.I. 1972). This presumption can be rebutted only with "clear and unequivocal" evidence. Id. at 1129.
The registration of a vehicle, by itself, is not "clear and unequivocal" evidence of an intent to change domicile. The government presents numerous affidavits of servicemen affected by Highwood's ordinance, demonstrating they have no intent to remain in Illinois after their release from active duty. These servicemen registered their vehicles in Illinois and a few even obtained an Illinois driver's license, but all state they have done so simply as a matter of convenience. Registering a vehicle and obtaining a driver's license are ties to be expected "wherever a serviceman is stationed . . . [and are] insufficient to overcome the presumption that [the serviceman] intended to return to his [home] domicile." Deckers, 592 F. Supp. at 28.
Thus Highwood's enforcement of its license fee against nonresident servicemen merely because they registered their vehicles in Illinois or obtained an Illinois driver's license, is a violation of the Civil Relief Act.
We do not hold, however, that Highwood may never enforce its ordinance against servicemen stationed at Fort Sheridan and living in Highwood. If it is "clear and unequivocal" that the serviceman is a resident or domiciliary of Illinois, the license fee may be charged. We hold, however, that merely registering a car or obtaining a driver's license in Illinois is not sufficient proof of residency.
II. Defendant's Motion to Dismiss
Highwood contends that this action should be dismissed because of the government's decision to close down the base at Fort Sheridan. We disagree with that contention.
The base will necessarily be phased out over a period of years. Our ruling ensures that servicemen will be afforded the protections of the Civil Relief Act during the transition period. In addition, the closing of Fort Sheridan will not affect the more than 60 acres of land which will be retained for activities directly affecting the Army Reserve component units. With the closing of the main portion of the base, active duty personnel assigned to the reserve units will need to seek housing in nearby communities, including Highwood. The dispute at issue will therefore continue to be relevant for those personnel.
For the foregoing reasons, we grant plaintiff's motion for summary judgment and deny defendant's motion to dismiss.