#### Calvin Manning, Guardian, Appellee, v. John H. Spry, Treasurer of Wapello County, and Wapello County, Appellants.

Taxation: , PENSION money: EXEMPTION op: INSANE PENSIONER. Pension money in the hands of a gn ardían of an insane pensioner is exempt from taxation, even though in the form of ■ interest hearing loans. The guardian is regarded as the agent of the government, and so long as the fund remains in his hands it is in transmission to the pensioner and under federal ' control.

*Appeal from Wapello District Court.*— Hon. T. M.. Fee, Judge.

Saturday, October 10, 1903.

*4*Suit in equity to restrain the defendant treasurer from collecting a tax assessed, against plaintiff, as guardian of one John Schwahkey, insane, on property held by him as such guardian, on the ground that the property was and is exempt from taxation. Defendants filed a demurrer to the petition, which was overruled, and, electing to stand on their demurrer, a decree was entered as prayed, and defendants *appeal.*

Affirmed.'

*D. II.*Emery, County Attorney, and *A. W. Enoch*for appellant.

*Mitchell & Hunter*and *8. E. Adler*for appellee.

DeémeR, J.

The controlling facts, as gathered from the petition, are as follows: In the *ye&T*1839 one Blake was appointed guardian of the person and. property of *192John Schwabkey, insane. He continued to act as such guardian until his death, in March of the year 1897. Thereupon plaintiff was appointed in his stead. The assessor of the city of Ottumwa, in Wapello county, listed and assessed against plaintiff money and credits to the amount of $4,500, and the board of supervisors levied taxes thereon amounting to over $300, which were regularly entered on the taxbooks of the county. In January of the year 1901 the defendant Spry, as county treasurer, entered on the taxbooks of the county taxes against plaintiff, on moneys and credits held by him during the years 1895, 1896, 1897, 1898, and 1899, amounting in all to something like $1,700. Quoting now from the petition: “(4) That the moneys so assessed, and on account of which said levies were made, were and are moneys paid to this plaintiff as guardian of said John Schwabkey, and to his predecessor in the guardianship, by the United States government, as a pension to said John Schwabkey, under the general pension laws of the United States, for and on account of physical disabilities received and sustained by the said John Schwabkey while a soldier in the regular army» of the United States during the war of the Rebellion, and credits on 'which assessments were made and are made, and on account of which such levies were made, were and are promissory notes taken and held by plaintiff for money loaned by him, the money so loaned being received by him,and his predecessor in guardianship from the United States government on account of the pension 'allowed his ward as aforesaid. (5)' That the United States government first allowed said John Schwabkey a pension on or about the 9th day of March, 1889, and on or about that time paid plaintiff’s predecessor, as back and accrued pension due plaintiff’s ward, $3,752. Afterwards, and on or about the 27th day of May, 1890, the government increased the rating of plaintiff’s ward to $72 per month, and for him,on or about said time, paid to plaintiff’s predecessor the sum of $11,244 *193as back and accrued pension due plaintiff’s ward; and ever since said time plaintiff’s predecessor and himself have received from the government $2Í6 per quarter as pension from the government to their ward. That during all of the said time the said John Schwabkey has been insane and utterly helpless, and the expenses of his keep, care, attention, and medical attention, and the expenses of his guardianship, have largely exceeded any interest income that either the plaintiff’s predecessor or himself could or have derived upon or from the aforesaid pension money by loaning out the same. That no part- of the moneys have been used productively, other than being loaned out at interest, and the moneys and credits held now by plaintiff aggregate much less than the principal' amount he and his predecessors have directly received from the government to their said ward; and their said ward does not now own, and has not. owned since long prior to his being placed, under guardianship, any' money, property, or other valuable thing whatsoever, except .the. pension money received from the government, and promissory obligations taken for it when loaned out. ”

Plaintiff claims that these tax levies- were each and all illegal and void, in that the moneys and credits were and are exempt from taxation under section 4747 of the Revised Statutes of the United States [U. S. Comp. St.'. 1901,-, page 3279]. He also pleads that the state has no power to. tax pension money, or the immediate avails thereof; .that such property is exempt from taxation under the laws: of the. United States and the Constitution and statutes óf ’this. state; and that taxes levied under state laws‘upon pension moneys in the hands of a pensioner, and received, by him, under the laws of the United States government as a bounty on account of disabilities he received in the military service of the government, are in contravention of the soverenity of the United States government under *194the Constitution, in that they impair and burden the power of the government to reward for military or naval service by bounty or pension. The demurrer, of course, challenges each and all of these legal propositions, but admits the facts; hence we have to deal simply with the questions of law presented.

Section 4747 of the Revised Statutes, relied upon by the plaintiff, reads as follows: “No sum of money due or about to become due to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office, or any officer or agent thereof, or is in the course of transmission to the pension-er entitled thereto, but shall inure wholly to the benefit of such pensioner.” And section 1309 of our Code reads in this wise: “The term credit as used in this chapter includes every claim or demand due or to become due for money * * * and all money or property secured by deed * * * mortgage or otherwise, but pensioners of the United States or any of them, or salaries or payments expected for services to be rendered are not included in the above term. ” Construing these sections together, it is manifest that pension money is exempt, not only from execution, but also from taxation, so long as it remains in the shape of money to meet the daily wants and necessities of the pensioner. This must be so, else it would not mure wholly to the benefit of the pensioner. Moreover, when we consider the nature and object of this bounty, it is clear to our minds that, were there no statute expressly exempting such funds, they should not be held subject to taxation. There is an old phrase to the effect that “the power to tax is the power to destroy.” There are, perhaps, some limitations of this doctrine, which would materially modify or explain it, but for present purposes it must be accepted as a truism. A pension is a mere bounty or gratuity given by the government in consider. *195ation or recognition of meritorious past services rendered by the pensioner or by some kinsman or ancestor. The policy of granting the same has prevailed both here .and in the mother country from a very early period, and no burden has been more easily borne or zealously guarded than this. The first Continental Congress, by act of August 26, 1776, provided for pensions for soldiers and sailors serving in the Revolutionary War; and one of the earliest acts ■of the Congress was a pension bill passed September 29, 1789. 1 Stat. 95, chapter 24. Since that time a large number of general and special acts have been passed, and the government has. been extremely liberal with those who have served it in time of need. The Constitution does not confer express power on Congress to pass such bills, but the right has been exercised under the grant of power bo raise and support armies. As we view it, .the power to grant pensions and bounties is inherent in government and its exercise is demanded not only from the standpoint •of policy, but from the higher considerations of gratitude ,and patriotism. The function has been assumed by fhe general government, and the matter is exclusively of federal cognizance, and beyond the pale of state control. The entire matter is vested in the Congress, and that body ias created a bureau, and passed various acts with reference to the granting and control of pensions, which are complete and comprehensive. Not only has it been liberal in its allowance of pensions, but it has undertaken to .guard and control them so that they shall inure wholly to "the benefit of the pensioner. Courts are not agreed as to just when the federal government loses control, and the state may take it; but we have held, in construing section 4747 of the Revised Statutes, before quoted, that property purchased with pension money is exempt from levy and ■sale under execution. *Crow v. Brown,*81 Iowa, 344. This is a step in advance of most other jurisdictions.' The rule generally is that such money is not exempt after it *196has-reached the pensioner. • See cases cited in *Holmes v.*Tallada, 3 L. R. A., at page 219, note, and *McIntosh v.*Aubrey, 22 Sup. Ct. Rep. 561 (46 L. Ed. 834). We quote the- *Grow Case*simply to show the liberal construction we have placed on this statute. Aside- from this, if the state were -permitted to tax pension money, it could virtually destroy any bounty the government might see fit to bestow on -its soldiers and sailors, and the guaranty that it should inure- wholly to the benefit of the pensioner would be wholly destroyed. 1 ... • ■

■If the pensioner in this.-case had been *sui*juris, and had held in his possession pension money received from the government, we do not-think such-fund would have been subject to assessment for taxation. Indeed, section 1309 expressly exempts it. Had he, instead of holding the money, loaned it out, -and taken bonds of mortgages as security, it may be the state would have had power to tax these securities. -But we do not decide that question. Adherence to the doctrine of *Crow v. Brown Case*would-result in a holding that such property could not be reached by legal-process, for it would not inure wholly to the benefit of the pensioner. -And if this - be true, it would doubtless follow, as a necessary-corollary, that it could not be taxed, for the reason 'that no writ' could issue for its sequestration. But. we need not'Speculate on this phase of' the case, for there are other considerations which, to our minds are decisive of it. As the pensioner was laboring under a disability, he has never received this pension money, unless dt be held that payment toliis guardian was payment to him, and that he.- has had the -full benefit thereof. As this matter of pensions is regulated ■ wholly by the federal government, we must look to the .-acts of Congress, to determine the authority of a guardian with respect to pension monety. ■- -

Section 4766 of the Revised Statutes of the'-United States reads as follows: “Hereafter no pension shall *197be paid to any person other than the pensioner entitled thereto, nor otherwise than according to the provisions of this title; and no warrant, power of attorney, or other paper executed or purporting to he executed hy any pensioner to any attorney, claim agent, broker or any persons shall he recognized by any agent for the payment of pensions; nor shall any pension be paid thereon, but the payment to persons laboring under legal disabilities may be made to the guardians of such persons in the manner herein prescribed and pensions payable to persons in foreign countries may be according to the provisions of existing laws; provided, that in case of an insane invalid pensioner having no guardian, but having a wife or children dependent upon him, (the wife being a woman of good character) the commissioner of pensions is hereby authorized, in his discretion, to cause the pension to be paid to the wife upon her properly executed voucher, or, in case there is no wife, to the guardian of the children, upon the properly executed voucher of such guardian, and in like manner to cause the pension of invalid pensioners who are or may hereafter be imprisoned as punishment for offenses against the laws, to be paid while so imprisoned to tbeir wives or the guardians of their children.”

And the penal laws relating to embezzlement of pension money are copied below:

“Sec. 4783. • Every guardian having charge and. custody of the pension of his ward who embezzles the same in violation of his trust or fraudulently converts the same to his own use, shall be punished by fine not exceeding two thousand dollars, or imprisonment at hard labor for a term not exceeding five years, or both.”

“Sec. 5486. If any guardian having the charge and custody of the pensions of his ward shall embezzle the same in violation of his trust, or fraudulently convert the same to his own use, he shall be punished by a fine not exceeding two thousand dollars or imprisonment at hard *198'labor for a term not exceeding five years, or both, at the discretion of the-court. ”

The above-mentioned section was' amended on February 10, 1891, so as to read as follows:

“Every guardian, conservator, curator, committee, tutor, or other person having charge or Custody.in a fiduciary capacity of the pension of his ward, who shall embezzle the same in violation of his trustor fraudulently convert the same to bis own use, shall be punished by a fine not exceeding two thousand dollars or imprisonment at bard labor for a term not exceeding five years, or both at the discretion of the court.” Act Feb. 10, 1891 chapter 130, section 1, 26 Stat. 746. In reviewing these and kindred sections of the acts of Congress, the United States Supreme Court, in *U. S. v.*Hall, 98 U. S. 343 (25 L. Ed. 180), held that a guardian appointed under state authority, to whom pension money was paid, is nothing more than an agent for the government, and that money in his hands is still under its control and management, Indeed, guardians appointed under state laws are required to make report to the commissioner of pensions of their acts and doings with reference to pension money received by them. In the *Hall Case,*it is held that a guardian appointed under state authority is not bound to accept pension money, and toat, if he does, he is amenable to the laws of Congress. This being so, it is. clear, we think, that the money has not passed into the hands' of the pensioner, although paid to his-guardian, and by him loaned out for-safekeeping, and to secure some return therefrom. So long as the fund remain? subject to the control and jurisdiction of the federal gervernment, the state has no right to impair,, direct, or control it. It is doubtful if a guardain could be punished by the state courts for mis-, management of- pension money. ■ He is amenable to the general government,-and in handling pension money he acts as a'government official or agent, and not primarily *199for the court appointing him. Ihe commissioner of pensions has held that pension funds in the hands of a guardian, which have not been paid to the pensioner or expended in his behaif in accordance with law, are in the nature of an accrued pension, and do not pass to his representatives upon his death, but are to be disposed of as provided in the act of Congress of June SO, 1890, reading as follows: “Provided further, that hereafter whenever a pension certificate shall have been issued and the pensioner mentioned therein dies before payment shall have been made, leaving no widow and no surviving minor children, the accrued pension due on said certificate to the date of the death of said pensioner may, in the discretion of Secretary of the Interior, be paid to the legal representatives of said pensioner.” Act June 30, 1890, chapter 639, section 1, 26 Stab 187. And of Act March 2, 1895, chapter 193, section 1, 28 Stat, 964 [U. S. Comp. St. 1901, page 3257J, reading as follows: “Such accrued pensions shall not' be considered part of the assets of the estate of the deceased person nor be liable for the payment of the debts of said estate in any case whatsoever but shall inure to the sole and exclusive benefit of the widow or children. And if no widow or child survive such pensioner and in the case of his last surviving child who was such,minor at his death, and in case, of a dependent mother, father, sister or brother no payment whatsoever of the accrued pension shall be made or allowed except so much as may be necessary to reimburse the person who bore the expense of their last sickness and burial, if they did not leave sufficient assets to meet such expense. And the mailing of a pension check, drawn by a pension agent in payment of a pension due to the ad-dréss of a pensioner shall constitute payment in the event of the death of the pensioner subsequent to the execution of the voucher therefor.” This, it seems to us, is the result which logically follows from the *Hall Case.*The *200guardian does notVeceive the pension as of right.' ' Indeed, as we understand it, the government may, and frequently does, withhold pensions from,one under guardianship. If a guardian does receive it, he is amenable to the department for its cafe and disposition. This being true, it has not reached the beneficiary until actually paid to him or expended for his benefit. While in the guardian’s hands, he is a mere trust.ee or depositary for the general government, and the fund, no matter what its form is not subject to taxation. . In so far as the pensioner is concerned, it is still a pension, within the meaning of section 1809 of our Code.

Appellants’ counsel present an ingenious argument in favor of the taxation of these credits, but it is wholly bottomed on the thought that when the money was paid to the guardian it was the same, in law, as a payment to the pensioner. If that were true, there would, of course, be much reason for saying that as he had loaned the money, and was not using or intending to use it for his ward’s daily necessities, he should pay his proportion of the taxes for the protection afforded his property. Here lies the fallacy, as we view it. The money has not, under the rulings of the pension department, reached the pensioner. It is being held by the guardian as a tfustee, and is in process of transmission until actually paid to the pensioner, or expended for his benefit. This being true, it is not subject to,"taxation.

The decree is right, and it is afítriied.