Case Information
*1 ~~A~~~OIRNEY GENEIKAL OFTEXAS AUSTIN ~~.T%xan
GROVER SELLERS -ON
A1T"RNWY G:lrNERAl.
Hon. Geo. R. Sheppard
Comptroller~~ of Public Accounts
Austin, Texas
Dear Sir: Re: Opinion No.
The date of "cessation of hostilities" as referred to In Sec. 1, S.B. No. Acts of 48th Legislature
We have your request for an opinion as to "the date of the cessation of hostllltles as referred to In Sectlon 1 of Senate Bill 130, Acts of the Regular Session of the Forty- eighth Legislature."
Many wartime statutes, both state and federal, contain provisions for termination upon "cessation of hostilities," "termination of the emergency-," "termination of then war," etc. (See "Report to the President by the Attorney General ooncern- lng the Limitation, Suspension, OP Termlnatlon of Emergency, National Defense and War Legislation," dated September 1, 1945.) Each statute must be construed in the light of Its particular wording and purpose and In the light of the factual conditions prevailing at the time the questlon is raised,
Senate Bill 130 releases interest and penalties on cer- tain ad valorem taxes,
I! . . 0 providing that the release of such Interest and penalties shall extend for the duration of World War JI, and providing that the respective members of such Armed Forces 0 . 0 shall be allowed a period of not to exceed six (6) months after the cessation of hostilities In which to pay without penalty and interest their taxes which have accrued and which shall accrue durlng the duratlon of the war." (Underscoring ours) - It is apparent from the above quoted language that the phrases "the cessation of hostilltles ' "the duration of World War II," and "the duration of the war' are inter-related and must necessarllg refer to the same time. Conceivably, actual fighting might cease more than slx.months prlor to the formal termination of the war. Obviously, the Legislature did not intend that the six-months' perlod of grace should terminate
Ron. Geo. R. Sheppard, page 2
prior to the acrual of the taxes. The Intent of the Act is that taxes which accrue against persons entitled-to the bene- fit of the Act prior to the termlnatlon of the war, If paid within SIX months thereaftier, are Interest-free and penaltg- free.
~Furthermore, Section of the Act states, "The fact that many persons affected by the provisions of this Act 'are In distant countries In the service of their county and may unavoldablg permit their taxes to become delinquent" creates an emergency. This clause shows that the Legislature intended to provide relief for persons who might unavoidably delay pag- ment of-taxes until. termination of their service in the Armed Forces and subsequent return to their homes. It Is reasonable to assume, therefore, that the Legislature, in fixing the time allowed such persons for payment of taxes wlthout penalty and interest, considered the Federal laws fixing the period of military service.
Prior to enactment of'the Act in question the 77th Con- gress of the United States had, by Public Law extended the period of service of members of the Army of the United States, and suspended restrlctlons on their terrltorlal use, "durlrig the existence of any war In which the United States 1s engaged, and during the six months immediately followlng‘~the,termlnatlo~n of any such war," Stat. 799; and by Public Law author; lzed the President to extend the period of service of Inductees a~sslgned ko the Navy, Marine Corps or Coast Guard, provided that the 0 0 e perlod~ of service s D . shall be terminated not later than six months after the terminatlon of the war," Stat.
It Is our opinion, therefore, that "the cessation of~~~hos- tillties" as used In Senate Bill130 means the legal termination of World War II, rather than the actual cessation of flghtlng on the fields of battle.
Upon what date did, or will, World War II terminate, in the legal sense?
It is the province of the political department, and not of the judicial department, of the federal-government to deter-- mine when war is at an end. The-Protector, 12 Wall. (U.S.) 700, 20 L.~ ed. 463; Perklns v, Rogers, 35 Ind. 124, 9 Am, Rep. 639,;’ Kneeland-Bigelow Co, v. Michigan Cent. RR. Co., 207 Mlch. 546, 605; 67 Corpus J'uris. 429.
The War of X360-66 did not terminate upon surrender of the last Confederate general (May 26,1865) but continued until the proclamation of the President (August20, 1866). United *3 Hon. Geo. H. Sheppard, page 3 O-6828
States v. Anderson, 9 Wall, (U,S,) 56; The Protector, supra; McElrath v. United States, 102 U.S. 426.
The War with Spain did not end when actual: hostilftles were suspended by theprotocol of August 12, 1898, but contln- ued.untl.1 the ratlflcatibn of the treaty ,of peace In April, 1899. Hijo v. United States, 194 U.S. 315, 48 L. ed. 994, 24 s. ct.
World War I did not terminate,when the actual flghtlng ceased and the Armlstlce was signed (November 11, 1918). Hamll- ton-v. Kentucky Distilleries & W. Co., 251 U.S. 146,, 64 L. ed,. 194, 40 S. Ct. 1.06; Kahn v. Anderson, 25 U.S. 1, 65 L. edb 469; In re Miller, 281.F. 764 (CCA, 2nd Clrc. 7 ; Zimmerman v. Hicks, 7 F (2d) 443 (CCA, 2nd Clrc.); Kneeland-Blgelow Co. v.'Michlgan Cent. R.R. Co., supra; Palmer v. Pokorny, 186 N.W. 50 i'(Mlch'. Sup. Ct.); State v. Dixon, 213 P. 227 (Mont. Sup. Ct. 7 ; Indus- trial Comm. of Ohlo v, Rotar, 179 N.E. 135 (Ohio Sup. Ct.); contra: United States v. Hicks, 256 F. 707 (Dist. Ct.).
Most cases ln which the point is directly involved hold that World War 1 terminated by the joint resolution of Congress of July 2, 1921. Clemens v. Perry, 51 S.W. (2d) 267 (Tex.~ Comm. App.); In re Miller, supra; Zimmerman v. Hicks, snpra; State v. Dlxon,'supra; Industrlal Comm. of Ohlo v.'Rotar, supra; see SWISS Nat, Ins. CO. v. Miller, 267 U.S. 42, 69 L. ed. 504. But some cases have held that it co tlnued until the ratification of the treaty of peace. First a at. Bank v. Anglo-Ceslerrelchische Bank; 37 F. (2d) 564 (CCA, 3d Clrc.); Palmer v. Pokorng, 186 505. (Mlch. Sup. Ct.). And other decisions have Indicated, by d~lcta, that a war Is not concluded until the treaty of peace Is made and becomes effective. See United States v, Anderson, supra; Hamilton v. Kentucky Dlstlllerles & W. Co., supra; Com- mercial Cable Co. v, Burleson, 255 F. 99 (Dlst. Ct.); Slplyak v. Davis, 119 Atl. 745 (Pa. Sup. Ct.).
The 77th Congress of the United States, by joint resolu- tions, formally declared a state of war between the United States and certain foreign governments, Public Laws (Japan), 331 Gerinany 332 (Italy), (Bulgaria), (Hungary), and ~Rumanla ~: To date, neither Congress nor the President has i formally declared a termination of these wars.
It is our opinion, therefore, that World War II has not yet terminated, and will not terminate, In the legal sense, and ln the sense that the words "cessation of hostllltles" are used In Senate Bill until the Congress of the Unlted States, or the President by authority from Congress, formally Proclaims that It is terminated.
Hon. Geo. H, Sheppard, page
We have heretofore forwarded to you copies of our Opinions Nos. O-5566, o-6258, and O-6565, which we believe answer the other qnestlons asked in your letter.
Yours very truly, ATTORNEY GENERAL OF TEXAS By s/Raymond A. Lynch; Raymona A. Lynch, Assistant.
RAL/rt/wc
APPROm OCT 19 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB ChaIrman