Ex parte White

• Decision Date: 30 November 1915
• Docket Number: 173.
• Citation: 228 F. 88
• Parties: Ex parte WHITE.
• Court: U.S. District Court — District of New Hampshire

228 F. 88

Ex parte WHITE.

No. 173.

United States District Court, D. New Hampshire.

November 30, 1915

Fred H Brown, U.S. Atty., of Somersworth, N.H., for petitioner.

J. R Waldron, of Portsmouth, N.H., for respondent.

ALDRICH District Judge.

In 1915 the city of Portsmouth assessed a poll tax against the petitioner, which he refused to pay, upon the ground that he was an officer of the United States army in actual service having residence in New York, and not in Portsmouth. Upon such refusal he was taken into custody, upon a warrant of the city collector, and was thereafterwards committed to the Rockingham county jail, from which custody he seeks relief through a petition for habeas corpus, upon the claim that his detention is unlawful. At the time the tax was assessed the petitioner was a sergeant in the Coast Artillery branch of the United States Army stationed at Ft. Stark, in the town of Newcastle, in New Hampshire. Ft. Stark is a subfort of Ft. Constitution, both having been ceded to the United States for military purposes.

The petitioner was born in New York City, where he lived with his parents until he enlisted in 1899. His first service was at Ft. Ethan Allen; then in the Philippine Islands; afterwards re-enlisting from New York City and serving at Ft. Terry, in New York, and Ft. Warren, in Massachusetts. He has remained in the service a very large part of the time since his enlistment in 1899, and at the expiration of each enlistment term he has returned to New York. After his service at Ft. Warren he went to New York and remained out of service for nine months, when he again re-enlisted in 1909 for a term of three years and was ordered to Ft. Constitution. At the expiration of his three-year term he re-enlisted, and was given a ten days furlough and went to New York. At the expiration of his term in 1915 he again re-enlisted, and was given a furlough in order that he might go to New York and New Jersey for a period of twenty days. After the death of his parents he had a room with his sisters in New York, which he in part furnished.

While there is no specific finding of the fact of residence, inhabitancy, or domicile in New York, the findings are substantially to that end, and we infer for the purposes of the decision here that such was the fact, unless his New York domicile has been terminated by his marriage to a New Hampshire woman, whose residence before marriage was at North Conway, N.H. Since such marriage the petitioner himself has had quarters at the fort, and has used his government allowance for subsistence there. It is said by the master that he is entitled to quarters for himself and wife at the fort, but because of the lack of facilities there he has maintained a home for her in a tenement in the city of Portsmouth.

The findings of the master exclude the idea that the arrangement for the apartment in Portsmouth is permanent, with the intention of making Portsmouth the petitioner's home. The petitioner's service at the fort is constant, except that he spends three or four nights a week at the apartment upon special military authorization.

It is apparent that the master in his findings was influenced somewhat by the view that the military service at Ft. Stark was temporary, subject to change under orders from superior officers at any moment, when service of the military arm was needed at other places. That view must be perfectly correct, as a general proposition, for the reason that, from the very nature of the duty which they have assumed, members of such service are constantly subject to orders.

Counsel on both sides have ably covered various phases of possible questions, and have cited authorities having special reference to the power of the general government to protect its military arm, as a necessary instrumentality for the protection of rights, and as an instrument of government defense.

It is quite sufficient to say that the authorities and the reasoning upon the subject abundantly establish the general proposition that the government arm, as a necessary government instrumentality, may and should be protected from unreasonable and unwarrantable interference.

The general proposition that the presence of the army in a particular locality is not of its own volition, and is presumably only temporary, is probably subject to the qualification that actual residence of members of the army in a given locality may be of such a fixed and permanent character as to exclude altogether the idea of domicile or residence in any other locality, and to the further qualification that, though one in the military service is subject to the orders of superior officers, the circumstances may be such that he remains so far sui juris, as to matters not involved in his military duties, that he may, if he so desires, change his domicile and establish it at any place he sees fit. Thus it is apparent that there is no hard and fast rule governing all cases.

Assuming the proposition that a member of the army may change his domicile, if not inconsistent with the military situation, to be one based upon reason, and established by the authorities, it still remains that the intention to change must be clear, and must be associated with something fixed and established as indicating such a purpose, and the circumstances in this case are against such an idea.

Questions as to local taxation of a member of the United States Army cannot be disassociated from considerations of public policy. The Court of Appeals for the First Circuit, in deciding against the United States in Gill, Collector, v. Bartlett, 224 F. 927, 928, . . . C.C.A. . . ., was simply stating a plain proposition with reference to government power to tax private rights when, in speaking of property rights, it said that:

'The imposition of a tax imposed by a government is a burden upon private interests laid upon private property under the necessary exercise of an arbitrary power, and because of the character of the power exercised, the rule is universal that, when the question arises whether given property should be held subject to the burden, the taxing power must make it clear that the statute was intended to cover the property in question.'

The principle that the intention must be clear applies as well to personal taxation as to property taxation.

While the United States attorney, who represents the petitioner, does not contend against the idea that a soldier may have a domicile apart from the federal station where his service is being rendered which may subject his property to State taxation, and that he may change it, he does strongly contend that a soldier in actual service is a government instrumentality, and therefore not subject to restraints incident to the imposition and collection of a poll tax.

It is urged that the power of the United States government to protect its soldiers from arrest and imprisonment for a poll tax is an inherent, essential, and necessary power, and that the recognition of the right of local governments to imprison its soldiers for nonpayment of a poll tax would tend to inefficiency, and to the destruction of the independence of the federal military arm; that the residence of a soldier in such a sense must be referred to the military station over which the United States exercises exclusive jurisdiction; that there can be no residence elsewhere for purposes of personal taxation; and, therefore, that considerations with respect to domicile do not enter at all into the question of the right of the paramount government to protect its military arm from restraints of liberty and burdens, not incident to crime, but from burdens and restraints, affecting personal liberty, imposed by local governments through their taxing powers for local money purposes.

It is quite probable that, under logical analysis, the authorities sustain such contention. Webster v. Seymour, 8 Vt 135, 138, 139; Opinion of Justices, 1 Metc. (Mass.) 580, 583; 1 Cooley on Taxation, 84, 130; 2 Story on the Constitution, Secs. 1224, 1227; Com. v. Clary, 8 Mass. 72, 77; Company v. Lowe, 114 U.S. 525, 534, 5 Sup.Ct. 995, 29 L.Ed....