Weeks v. Gilmanton , 60 N.H. 500 ( 1881 )

The provision in the act incorporating Gilford from a part of the territory of Gilmanton, by which it was enacted that each lot "dissected" by the divisional line between said towns should be considered as belonging to the town in which the owner resided, but if non-resident in either of said towns, the lot should be taxed in Gilmanton, was not, as contended by counsel for Gilmanton, in the nature of a contract, and no vested right so to tax such lots has been acquired by those towns. Municipal charters are not contracts in the sense of the constitutional provision, which prohibits the obligation of contracts being violated, but are granted for public purposes, and may be amended or repealed at the discretion of the legislature, Cool. Tax. 56; Dill. Mun. Cor. (3d ed.) s. 82; Cool. Con. Lim. (4th ed.) 232, 233, and cases cited.

Nor is it material that for more than sixty years the parties in interest acquiesced in the method of taxation prescribed by the Gilford charter; for the question arising here is not to be determined by usage, however long established, but by the statutes regulating and governing taxation, in accordance with the constitution, which were in force when the taxes in question were assessed (Dillingham v. Snow, 5 Mass. 547, Ham v. Sawyer,38 Me. 37, Hughey's Lessee v. Horrel, 2 Ohio 231), and the mere payment of taxes improperly assessed, without objection, will not estop a person to resist further assessments. Landon v. Litchfield, 11 Conn. 251; Cruger v. Dougherty, 43 N.Y. 107; Big. Est. (2d ed.) 463.

The general principal as to taxation is, that states and municipalities have jurisdiction only over persons and property within their respective limits; and that as to persons and property outside such limits there is not only no jurisdiction, but the want of legal interest in the tax also precludes subjection to its burden. because there must be between the power imposing the tax and the taxpayer a reciprocity of duty and obligation. Cool. Tax. 121, and cases cited. Tested by this principle, which is properly regarded as sound, the provision in question cannot stand; and it is also wholly inconsistent with the exercise of the well-defined powers which towns from their nature possess and are entitled to exercise, of which the right to tax all persons and property within their limits is one of the most valuable. But without regard to these considerations there is another, which, in this state at least, cannot be overlooked, and that is, that the provision under consideration is utterly irreconcilable with the fundamental principle of taxation, that like classes of property shall bear a like burden of taxation for, by it, lots through which the divisional line passes, and belonging to residents, are not to be taxed on the basis upon which lots in general are taxed, but upon the basis prevailing in Gilford or Gilmanton, as the owner may happen to reside; but if he is a non-resident, no matter in which town the land may lie, or what may be the rule of valuation or rate of taxation therein, the rate is to be established and the tax assessed and collected by Gilmanton for its exclusive use and benefit. It would be difficult to find a stronger instance of unequal and extra territorial taxation, and, notwithstanding it has been held in other jurisdictions that occupied lands lying partly in two townships may be taxed together in that in which is the house of the owner, or in which the principal portion is situate (Cool. Tax. 121, note), the constitutionality of the Gilford charter in the respects named might well be questioned. It is unnecessary, however, to pass upon this question, for there are other grounds which entitle the petitioner Weeks to relief. One is, that the legislature manifestly intended the provision as to taxation to be temporary and not permanent; that its purpose was to carry out the agreement of the parties (Lancaster's Hist. Gilmanton 122), and adapt the dividing act to the supposed convenience of the existing land-owners whose lands were divided. Lamprey v. Batchelder, 40 N.H. 528,529. The language of the provision supports this view, and there is nothing to indicate sufficiently that its operation was intended to extend to future owners of the divided lots.

Then, again, the taxes against the petitioners were assessed under a law imperatively requiring all real estate to be taxed in the town where it is situate (G. L., c. 54, s. 11), and there has been no change in this respect since the revision of 1842. Rev. St., c. 40, s. 7; C. S., c. 42, s. 9, G. S., c. 50, s. 11. Prior to that revision we are aware of no statute expressly requiring real estate to be so taxed, and in the absence of such a requirement it is quite probable that the legislature of 1812 may have understood that it had the power to incorporate into the charter the anomalous provision in question. But however this may have been, we are of opinion that the provision was intended to be merely temporary in its operation, and if not that it was repealed by the revision of 1842.

Petition of Weeks granted.

Petition of Mack denied.

All concurred.