Zearing v. Johnson

California Court of Appeal Dec 17, 1935 No. Civ. 10449Published

Before: Roth

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Holding. A 'discharge from draft' issued due to physical unfitness prior to acceptance into the military does not constitute an 'honorable discharge' or a release from active duty under the California constitutional veteran's tax exemption.

Issues

Whether a 'discharge from draft' qualifies as an honorable discharge under Article XIII, section 1 1/4 of the California Constitution.
Whether a person discharged from draft for physical deficiency has 'served in the army' within the meaning of the constitutional tax exemption.

Disposition. affirmed

Quotations verified verbatim against the opinion

“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.”

“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.”

ROTH, J.,

pro tem.

Appellant Zearing, as plaintiff, filed a petition for a writ of mandate against respondent Johnson in his capacity as Assessor of San Diego County, State of California. It appears from the petition for the writ that appellant is a resident, property owner and taxpayer of San Diego County, and sought to obtain a veteran’s exemption for the year 1933, pursuant to section

l1/^

of article XIII of the Constitution of the state of California. A general demurrer to the petition was sustained without leave to amend and from the judgment entered thereon this appeal is taken. The formal and substantive sufficiency of all allegations save one are not questioned. The allegation which creates the question which must be decided on this appeal is as follows: “That petitioner served in the United States Army between August 30, 1918, and September 8, 1918; that your petitioner received an honorable discharge therefrom in the form of a ‘discharge from draft’ copy of which said discharge is attached hereto and marked Exhibit ‘A’ . . . ; that said honorable discharge has been filed in the office of the County Assessor of San Diego County, California; ...”

It appears from said allegation and exhibit “A”, that on August 30, 1918, appellant, who was then a resident of the state of Indiana, was ordered into military service by his local draft board, and he reported to Camp Dodge, Iowa, pursuant to such order; that he was discharged from Camp Dodge on September 8, 1918, because of physical unfitness. The discharge, as set out in exhibit “A”, reads in part as follows:

[656]

“DISCHARGE FROM DRAFT “TO ALL WHOM IT MAY CONCERN:

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“THIS IS TO CERTIFY, That Wallace H. Zearing, a recruit, 64 Co. 163 Depot Brigade is hereby discharged from military service of the United States by reason of Physical deficiency as per 3d Ind. Dated Sept. 8/18 on form 1010 P. M. G. 0., giving as reason for discharge defective hearing, Otitis Media suppurative Chronic left hearing. R. 5/20 L. 5/20; Group ‘Db Said Wallace H. Zearing was inducted into the service from the jurisdiction of the local board from Madison, Jefferson Co., Adjutant General, State of Indiana, on the Thirtieth of August, 1918. While this certificate discharges the person named herein from his

Zearing v. Johnson

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ROTH, J.,

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