Jarvie v. State Tax Commission , 1962 Ore. Tax LEXIS 15 ( 1962 )

DECISION UPON REHEARING Appeal from opinion of commission denying war veterans' tax exemption. The Oregon Tax Court held that "time of war" with respect to World War I ended with cessation of actual hostilities on November 11, 1918, and that such a holding was not unconstitutional.

Original opinion of court affirmed. Decision reaffirming earlier opinion rendered June 28, 1962. 17. On rehearing, counsel for plaintiff presented additional authorities in another exhaustive brief of the issues, citing judicial definitions of "war" and "peace" under varying statutes and factual conditions. However, in his argument he acknowledged that he did not believe that the legislature intended to confer the benefit of this veteran's exemption upon one who had served in the armed forces from April 1, 1921, to July 2, 1921, the 90 days immediately preceding the formal cessation of World War I by Congressional resolution. Instead he sought that this court choose some day after November 11, 1918, and before July 2, 1921, and say arbitrarily that the war ended then. This court will not usurp the legislative function, nor does it need to infringe on that function at all to preserve the constitutionality of this statute.

The only choices are November 11, 1918, and July 2, 1921. The question before this court is: Which did the legislature mean? As laid down in the original opinion, the clear and unambiguous legislative meaning was that World War I ended on November 11, 1918.

18, 19. This court takes judicial notice of an opinion of the Attorney General, dated August 7, 1951, in which Attorney General Neuner interpreted this statute to mean that World War I began on April 6, 1917, and ended on November 11, 1918. 1950 Ops Att'y Gen'l 239. Upon this opinion, various administrative bodies of this state have been acting for more than ten years and through five legislative sessions. Had the legislature intended otherwise, it had ample opportunity to amend the statute. Furthermore, as stated in Pacific Supply Cooperativev. State Tax Commission, 224 Or. 556, 560, 356 P.2d 939 (1960):

"2, 3. In the absence of judicial construction, administrative construction is informative, and unless clearly at variance with the express terms of the statute, is entitled to respect. * * *."

Finally, the plaintiff seeks to construe the word "including" in ORS 174.100(7) as used to define World War II by dates to extend the period of World War I. In fact, the contrary is the actual effect of this word. If "time of war" in this statute means from the declaration to the formal termination, then to "include" the period from September 2, 1945, to noon on December 31, 1946, in World War II would be tautological. Formally, World War II had not ended by December 31, 1946, and if the formal, legalistic meaning is used, there is no need to "include" this period. The inclusion of the period from September 15, 1940, to December 31, 1946, can only make sense when the normal, usual, and intended meaning of "time of war" is taken to mean from the declaration of war to the armistice, the period of hostilities.

The only meaning for "time of war" which coincides with the extrinsic factors in the language of the statute and with its administrative and legislative history is that which is the plain and popular meaning. This court so found in its earlier opinion, and upon rehearing, that earlier opinion is reaffirmed.

A decree will be entered herein under Rule 31.

Dated this 28th day of June 1962.