Huckins v. City of Boston , 58 Mass. 543 ( 1849 )

Fletcher, J.

This is an action of assumpsit to recover the amount of taxes, assessed to the plaintiff by the assessors of the city of Boston, for the years 1846 and 1847, and paid by him under protest, denying that the taxes were lawfully assessed. There is no controversy as to the amount; but the question is, whether the plaintiff was by law liable to be taxed, at all, or in any sum, in the city of Boston, in the years 1846 and 1847.

It is admitted, that, on the 1st day of May, in each of those years, and for several years before, the plaintiff was an inhabitant of and resided in the city of Roxbury, and was there taxed for his poll, and for his real and personal estate and income, and paid the same. The ground, upon which the city of Boston claims the right to assess the taxes in question upon the plaintiff, is, that he had goods, merchandise and stock in trade in that city, at the time of the assessment, so situated and under such circumstances, as to be legally liable there to assessment. The form of the assessment is on his “ personal estate, income, &e.” This must in form at least be incorrect; as the plaintiff was legally liable to be taxed for income in Roxbury, where he was an inhabitant, and where he was in fact so taxed and paid the amount assessed upon him. He could not therefore be rightfully taxed a second time for the same thing in Boston. But it is understood, that the assessments in Boston were in fact only on goods and merchandise there ; and it would seem advisable, therefore, that the form of the assessment should be corrected; as upon the face of it, it would appear not to be warranted by law.

The city of Boston claim the right to make these assessments on the goods of the plaintiff, by virtue of the provisions of the Rev. Sts. c. 7, § 10, cl. 1, and of the statute of 1839, c. 139, § 1. The former provides, that “ All goods, wares and merchandise, or any other stock in trade, including stock employed in the business of any of the mechanic arts, in towns, within the state, other than where the owners reside, shall be taxed in those towns, if the owners hire or occupy stores, shops or wharves therein, and shall not be taxable where the owners reside.” The statute of 1839 declares, that “ All stocks in trade, including stock employed in the business of manufacturing, or of any of the mechanic arts, in towns within the state, other than where the owners reside, shall be taxed in those towns, if the owners hire or occupy manufactories, stores, shops or wharves therein, whether the said stocks in trade, or the goods, wares and merchandise, or other property composing or forming a part of the same, are within said towns on the 1st day of May, of the year when the tax is made, or elsewhere.” The statute of 1839 enlarges the former provision as to the time when the goods must be found within a town other than that in which the owner resides, in order to be liable to be taxed in the former town; not confining it to the 1st of May as in the prior statute.

The present case shows, that the plaintiff had a privilege in a counting-room in Boston, where he kept his books and received notices and letters; that he made his deposits in Boston; and, in fact, it appears quite fully, that his place for the transaction and management of his general business was in Boston. So, also, it appears that he was interested in vessels sailing from Boston, and returning there with cargoes ; that he received goods by those vessels, which he procured to be stored at different places in Boston ; and that he had on storage in Boston some of the products of his factory other than those in the hands and possession of his agents, which, of course, were stored by him. Itwould seem, also, (but upon this point the statement of facts is not very distinct or certain), that the plaintiff, though he did not keep and exhibit samples, yet, to some extent and in some mode, exhibited and made sales of the products of his factory, and of other goods which he received by his vessels, and which were on storage in Boston.

If, therefore, the law had provided, that any one, who transacted his business in a town other than that in which he lived, though he was an inhabitant of and liable to taxation in another place, might be taxed in the place in which he transacted his business; or if it had provided, that the owner of goods or merchandise, or stock in trade, which might under any circumstances be found in a town other than that in which he lived, might be taxed there, the plaintiff, upon the facts stated, might very probably have been found liable to be taxed in Boston. But the liability of a person to taxation in a town other than that in which he lives is not made by the statute to depend on the fact of his doing business in such other town ; or on the general fact that he has goods in such other town.

But, by the statute, goods, wares and merchandise, and other stock in trade, are taxable in the town where they may be, other than the town where the owner resides, only in the case, and upon the express condition, that the owner hires or occupies stores, shops, or wharves in such other town, in which he does not reside. In order, therefore, that a town may rightfully" tax goods found within it belonging to an owner, who is an inhabitant of and liable to taxation in another town, it must appear, that the owner of such goods hires or occupies stores, shops or wharves in the town where the goods may be found.

The plaintiff, in the present case, was an inhabitant of the city of Roxbury, and he had goods in Boston ; but to render him liable to be taxed in Boston for those goods, it must further appear, that he hired or occupied stores, shops or wharves in Boston. This hiring or occupying stores, shops or wharves, the statute expressly makes the ground of liability to taxation in such cases. There was a manifest propriety in having the specific grounds of liability expressly stated and defined in the statute; as it was not the purpose of the statute, to have all goods found in towns other than those in which the owner lives liable to be taxed in the towns in which they might be found.

It is manifest from the statement of facts, in this case, that the plaintiff did not hire any store, shop or wharf in the city of Boston. He had a privilege in a counting-room only for the transaction of his business; what goods he had in Boston, were in stores or shops, or on wharves hired or occupied by others and not by himself. But it does not appear, that the plaintiff himself hired or occupied any store, shop or wharf in the city of Boston, and, of course, therefore, was not liable to taxation there. The result is, that the plaintiff must have judgment for the sum paid by him and interest from the time of payment.