Alleyne Otis vs. City of Boston, 12 Cush. 44

Shaw, C. J. Assumpsit to recover the amount of a tax paid by the plaintiff, as a city and county tax, assessed on him for his poll and personal estate in May, 1849. The determination of this question depends on a few plain principles. By the theory of taxation in this commonwealth, every inhabitant shall be taxed for his personal property; but as personal property has no locality, but follows the person, the place of taxation must be that where the person is an inhabitant at the time fixed by law for levying the tax, which for many years past has been the first day of May.

All taxation upon the inhabitants shall be equal as far as practicable no citizen, therefore, can be twice rightfully taxed for the same property, the same year; therefore a man cannot be an inhabitant in two different towns in the commonwealth at the same time. With these preliminaries, which we think clear, let us look at the more particular provisions of law. Rev. Sts. c. 7, § 1 A poll-tax shall be assessed on every male inhabitant of the commonwealth, &c.

Section two provides that all property, real and personal, of the inhabitants of this state, not expressly exempted bylaw, shall be subject to taxation. This declares the general duty of inhabitants, and the general liability to taxation.

Section nine fixes the place; to wit, all personal estate, whether within or without this state, (except in certain cases not affecting this question,) shall be assessed to the owner, in the town where he shall be an inhabitant on the first day of May. We think the law assumes, that if a person is an inhabitant of the state, he must be an inhabitant of some one town ; it assumes that this fact is capable of proof, and then it is adopted as a rule or standard, upon which other duties and liabilities are made to depend.

It is not enough to say that it is difficult of proof, and depends upon shades of difference so minute, that the proof will be often nearly balanced and leave the fact in doubt. This is a very satisfactory reason why it is difficult, perhaps impossible, to lay down precisely any general rule by which to determine it.

But when all the facts bearing upon the question, first important, then slight, then minute, if necessary to resort to them, are presented to the court by a statement of facts, special verdict, or otherwise, we are not at liberty to say, that the fact of being an inhabitant, or not, cannot be decided. Nor is it consistent with these provisions, to hold that a man may be an inhabitant in one town for purposes of taxation, and in another for the enjoyment of political privileges or municipal rights. The being “ an inhabitant ” is a fact first to be fixed.

These laws, we think, assume that a man may be an inhabitant of some one town in the commonwealth, and cannot at the same time be an inhabitant of any other; and that there are facts and circumstances attending every man’s personal, social, and relative condition, which do determine in what town he is an inhabitant, and that these facts and circumstances are capable of judicial proof.

Perhaps this question has heretofore been somewhat complicated, by going into the niceties and peculiarities of the law of domicil, taken in all its aspects; and there probably may be cases where the law of domicil, connected with the subject of allegiance, and affecting one’s national character, in regard to amity, hostility, and neutrality, is not applicable to his subject.

But as a man is properly said to be an inhabitant where he dwelleth and hath his home, and is declared to be so by the constitution, for the purpose of voting and being voted for; and as one dwelleth and hath his home, as the name imports, where he has his domicil, most of the rules of the law of domicil apply to the question, where one is an inhabitant. 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; ” a word of Saxon origin, instead of where he shall be an inhabitant.

To some minds, it might have been a little more intelligible. Referring then to the cases, in which these subjects have been so fully and recently discussed, and the correctness of which we find no reason to doubt, we proceed to examine the case of Mr. Otis. Boston was his domicil of origin, his native place, where he passed the earlier years of his life. He was beyond doubt an inhabitant of that place till 1828. He then left Boston, went to New York, took up his abode, and established himself in business there, and beyond doubt acquired a domicil or became an inhabitant there.

This continued until his return to Boston in 1840. It is said that one’s domicil of origin is more easily regained than any other. This is only one of those modes of approximating to the proof of fact and intent, which constitute a change of domicil in a doubtful case; because, from the natural propensities of the human mind, one will more readily be presumed to intend returning to his earliest home than to a place of temporary abode. It is but a slight circumstance, but resorted to in a nicely balanced case, where slight circumstances will turn the scale.

But that is not at all necessary, nor is it of any weight in the present case. Mr. Otis came to Boston without any definite intent to return to New York ; he had his abode there eight years, and until the decease of his father in 1848. He was one of the executors of his father’s will, and remained there in the performance of his duties as such, until April, 1849. The question is then brought to this, whether anything was done by Mr. Otis, by which he ceased to be an inhabitant of Boston, between April 5 and May 1, 1849.

In general, it is laid down as a fixed rule on this subject, that every man must have a domicil; that he can have but one; and that of course a prior one will not cease until a new one is acquired. It is then asked, what is the condition of one who has purchased or hired a house, or otherwise fixed his place of abode in another place, left the town of his last abode, with all his property and furniture, and is on his way to his new abode; is he an inhabitant of the place from which he has departed ?

If his removal were towards another town in this state, we think his place of being an inhabitant would not be changed. He would certainly continue to be an inhabitant of the state, and taxable in some towr and the only question would be, in which he was an inhabitant on the first of May. Three might claim him: the one he has left, the one he is in, and the one to which he is proceeding.

In such case we think the rule would apply, and his home would not be changed, either to the place of his actually bodily presence, or of his destination, because in neither would the fact of actual presence and the intent to reside concur. Not the place where he was in itinere, for want of the intent; nor of his destination, for want of his actual residence. If he had left the state and actually passed its limits on his way to a distant state, it would certainly be a question of more difficulty in its various aspects, as fixing his citizenship with a view to succession and the like.

But we have no occasion to determine such a question, because there are no facts which bring the case within this rule. It was argued that the case of Kilburn v. Bennett, 3 Met. 199, was decided on this ground; but we think the decision will not bear that construction. The plaintiff had sold his farm, left Groton, went to his brother in Tyngsborough, with an ultimate intent to go to Illinois, but to make his home in Tyngsborough until his removal. In April Mr. Otis went to New York, but avowedly to take passage for Europe; it was not with any intent to resume his residence in New York as a home.

His frequent intimations that it was his intention, after the decease of his father, to go to Europe, were accompanied with no act having a tendency to carry such an intention into effect. And so when he returned to Boston after the first of May, and sailed thence at the end of that month. He had fixed no place of abode definitely. He sailed for England, but not to stay there. He thought of going to Paris ; but with a purpose so indefinite, that he was induced, by the existence of cholera in Paris, to go to Switzerland.

Indeed, the most definite declaration of purpose, when he was about taking his departure for Europe was, that he should reside in Paris, or if he returned, should settle in New York. We attach no importance to the fact of his returning to Boston in May, 1849, and sailing from there instead of New York; independently of that circumstance, we think he was an inhabitant to the fifth of April, and that he had not ceased to be an inhabitant of Boston, certainly until he sailed for Europe, after the first day of May. How much longer he may have been considered an inhabitant of Boston, we give no opinion.

We are of opinion, therefore, that he was liable to taxation in Boston on the 1st of May, 1849, and therefore cannot maintain this action. Judgment for the defendants,