Briggs v. Inhabitants of Rochester , 82 Mass. 337 ( 1860 )

Metcalf, J.

The facts which the evidence at the trial tended to prove were these: That in April 1858 the plaintiff, who was then an inhabitant of the town of Rochester, removed out of the State, with the intention not only not to return and have his home in that town, but also with the intention to make his future abode and home in Motthaven in the State of New York; but that,before he took up his intended new abode, he stopped at the house of his son in the city of New York “till and including the 1st of May 1858;” and that shortly afterwards he went to Motthaven, where he has since resided. On these facts the question is, whether the plaintiff, on the said first of May, was an inhabitant of the town of Rochester, within the meaning of the ninth section of c. 7 of the Revised Statutes, which directs that “ personal estate shall be assessed to the owner in the town where he shall be an inhabitant on the first day of May.”

There is no adjudged case in our reports, which is decisive of this. In no one of the decisions there found, in which a person has been held liable to taxation in a town that he had left before the 1st of May, had he removed out of the State before that day, with the intentions which this plaintiff had when he removed from Rochester. According to those decisions, if the plaintiff had removed in April from Rochester to some other town within the State, intending to make his home there" until he should proceed to Motthaven, in pursuance of his original intent, and had remained in such town until after the 1st of May, he would have been taxable there. Kilburn v. Bennett, 3 Met. 199. But if he had removed to such town for a mere temporary purpose, not intending to make a home there, he would have been taxable in Rochester. Bulkley v. Williamstown, 3 Gray, 493. In either case, as said by Shaw, C. J. in Otis v. Boston, 12 Cush. 50, he certainly would have been an inhabitant of the State, and taxable in some town. In the same case, the chief justice also expressed an opinion, that if a person, on the 1st of May, was on his journey to a new place of abode in another town within the State, he would be taxable in the town from which he was removing. But he also said, that if a person had left the State, and actually passed its limits, on his way to a distant state, it would be a question of more difficulty, in its various aspects; but that the court then had no occasion to determine such a question. We must now determine it, for we have no doubt that the plaintiff, while stopping at his son’s house, must be deemed to have, been on his way — in itinere — to Motthaven.

The present question may be put into this form: Do the words, “ in the town where the owner is an inhabitant,” mean the town where he has a domicil, in its strictly technical sense, and with its legal incidents ? If such be their meaning, the plaintiff was rightly taxed in Rochester. For he once had a domicil there; he had not on the 1st of May 1858 acquired a new domicil in Motthaven; and he could not be without a domicil while on his way to that place. Phillimore on Domicil, 11-14, 21-24. Story Confl. §§ 44-47. 12 Cush. and 3 Gray, ubi sup. Jennison v. Hapgood, 10 Pick. 98. But we do not understand that those words have such a meaning.

The word “domicil” is not in the Constitution nor in the statutes of the Commonwealth; but the words “inhabitant” and “ resident ” are frequently used in both. By the Constitution, c. 1, § 1, art. 4, the legislature is empowered “ to impose and levy proportional assessments, rates and taxes, upon all the inhabitants of, and persons resident and estates lying within the Commonwealth.” By the next section, certain described “ inhabitants ” of the Commonwealth are made legal-voters for certain state officers; and it is there declared that for the purpose of electing and being elected into any office within the State, every person shall be deemed an inhabitant in that town, &c., where he dwelleth or hath his home. It is provided by the Rev. Sts. c. 2, § 6, that in the construction of all statutes the word “ inhabitant ” may be construed to mean a resident in any city or town. And it has repeatedly been said by this and other courts, that the terms “ domicil,” “ inhabitancy ” and “ residence ” have not precisely the same meaning. Lyman v. Fiske, 17 Pick. 234. Thorndike v. Boston, 1 Met. 245. Foster v. Hall, 4 Humph. 348. Warren v. Thomaston, 43 Maine, 412.

In the statute on which this case depends, we are of opinion that the words, “where he shall be an inhabitant on the first day of May,” mean where he shall have his home on that day. In 12 Cush. 49, Chief Justice Shaw said: “ Perhaps it would have been quite as near the purpose of the legislature, in fixing a standard of liability to taxation, perhaps not more so, to say that it shall be where he hath his home, instead of where he shall be an inhabitant.”

This plaintiff did not reside or dwell in Rochester on the 1st of May 1858, nor had he then a home there. He had left the town, removed out of the State, and abandoned his home, with an intention never to resume it, but with an intention, which he soon carried into effect, to make a new home in the State of New York. And certainly there is no good reason, if the statute does not peremptorily so require, that he should be taxed in this state for expenses incurred in support of its institutions, after he left it, and ceased to receive benefit from them, either by participating in the actual enjoyment of them, or by deriving, through their instrumentality, protection to his property or his person.

As the verdict was returned under instructions that do not conform to the foregoing views of the law, it is to be set aside and a New trial granted.