Hittinger v. Inhabitants of Westford

• Decision Date: 22 June 1883
• Citation: 135 Mass. 258
• Parties: Thomas S. Hittinger v. Inhabitants of Westford. Inhabitants of Westford v. County Commissioners of Middlesex. City of Cambridge v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 258

Thomas S. Hittinger v. Inhabitants of Westford.

Inhabitants of Westford v. County Commissioners of Middlesex.

City of Cambridge v. Same

Supreme Court of Massachusetts

June 22, 1883

Middlesex.

In the first case, Judgment for the plaintiff. In the other cases petitions for writs of certiorari dismissed.

R. D Smith & M. M. Weston, for Hittinger.

J. N Marshall, for Westford.

J. W. Hammond, for Cambridge.

Colburn J. Devens & W. Allen JJ., absent.

OPINION

Colburn, J.

The essential facts in each of these cases being similar, and the legal questions raised the same, we have considered them together. The leading facts are, that Thomas S. Hittinger was an inhabitant of Belmont, where he voted and paid taxes upon his poll and all his personal property. His business was that of cutting, storing, and selling ice at wholesale, chiefly in large quantities, for export, or for use in this or other States. He sold only such ice as he cut and stored himself. He neither cut, stored nor sold ice at Belmont. He owned large ice-houses, near railroads, on the shores of Fresh Pond in the city of Cambridge, and of Forge Pond in Westford, in which he stored the ice cut from said ponds, both being great ponds. He had a steam-engine, boiler, machinery, and ice tools at his ice-houses in said town and city, which were only used for cutting the ice and storing it in said houses. He had an office in Boston, where he employed a clerk, at which his books were kept, and where his contracts for the sale of ice were usually made and his business principally transacted. He had no ice stored in Boston.

No business was usually transacted at Cambridge or Westford, except such as was essential to the cutting, storing, and delivery of the ice, pursuant to orders from the office in Boston. The ice was mostly delivered on to railway cars, but to some extent upon wagons sent by purchasers. All accounts kept at these places were sent daily or frequently to be entered upon the books in Boston.

In 1880, the town of Westford assessed a tax upon the ice, steam-engine, boiler, and machinery of Hittinger in that town, which he paid under protest, and brought his action in the Superior Court to recover it back. The court found for the plaintiff, and reported the case for the determination of this court.

In 1882, the town of Westford assessed a tax upon the ice, steam-engine, boiler, and ice tools of Hittinger in that town, and the city of Cambridge assessed a tax upon the ice and machinery of Hittinger in that city. Hittinger applied to the assessors of said town and city, respectively, for an abatement of these taxes, which they refused; and he then complained to the county commissioners of Middlesex, who abated these taxes, and the town and city brought their several petitions to this court for writs of certiorari to the commissioners, praying that their determination be reversed.

No questions are made in either of the cases, except upon the validity of the assessments.

The ice was merchandise and was Hittinger's stock in trade.

The town and city contend that the ice was taxable under the provisions of the Gen. Sts. c. 11, § 12, cl. 1, for the reason that Hittinger occupied stores or shops there.

It cannot with propriety be contended, and is not contended, that the ice was taxable in those places merely on the ground that it was stored there. Loud v. Charlestown, 103 Mass. 278. Huckins v. Boston, 4 Cush. 543.

In legislative acts, the natural import of words, according to their common use, when applied to the subject matter of the act, is to be considered as expressing the intention of the Legislature. Opinion of the Justices, 7 Mass. 523.

We are of opinion that the natural import and common use in this country of the word "store," when applied to a building, is to designate a place where traffic is carried on in goods, wares or merchandise, and not to designate a storehouse. And we are of opinion that the history of the legislation upon the subject of taxing personal property in places other than those where the owner is an inhabitant, indicates that this was the sense in which the word "store" was used by the Legislature.

In the Prov. St. of 1753-4 (27 Geo. II.) c. 10, § 8; 3 Prov. Laws (State ed.) 695; it was enacted "that when any merchant, trader, or factor, inhabitant of some one town within this Province, shall traffic, or carry on trade and business, and set up a store in some other town in the Province, the assessors of such town where such trade and business shall be carried on as aforesaid, be and hereby are empowered to rate and assess all such merchants, traders, and factors, their goods and merchandise, for carrying on such trade and exercising their faculty in such towns pursuant to the rules and directions of this act," &c. In the corresponding section of the Prov. St. of 1757-8 (31 Geo. II.) c. 2, § 8; 4 Prov. Laws (State ed.) 17; the language was varied as follows: "When any merchant, trader or factor shall set up a store and traffick, or carry on any trade or business in any town, within this Province, not being an inhabitant of such town, the assessors of such town, where such trade and business shall be carried on as aforesaid," &c. A similar section was contained in the tax acts for many years following.

After the adoption of the Constitution, in the annual tax acts which were passed down to the time of the Revised Statutes it was customary to introduce the provision for the taxation of the personal property of non-residents with a preamble. We quote from the tax act of 1821, being c. 107 of the acts of that year, as a specimen of one of the preambles, and the provisions generally contained in these tax acts. "And whereas there are many...