Pickering v. City of Cambridge
| Decision Date | 23 March 1887 |
| Citation | 10 N.E. 827,144 Mass. 244 |
| Parties | PICKERING v. CITY OF CAMBRIDGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank Goodwin, for plaintiff.
No one element, or class of elements, can, as matter of law conclusively determine what is the domicile. Thayer v Boston, 124 Mass. 146; Opinions of Justices, 5 Metc 588, 589. The declarations of the plaintiff, connected with the series of events which were offered as evidence of the fact of a change of domicile, explanatory of such events, and as showing that the acts of the plaintiff therein tended to accomplish a change of domicile, were admissible. See Weld v. Boston, 126 Mass. 166, 167, 169; Wright v. Boston, Id. 161. The notice given to the Cambridge assessors was only one fact in a collection of facts tending to show a change of domicile, and, even after a new residence has been acquired, the acts of the party in the new domicile are competent; such as paying taxes there, voting, attending town meetings, etc. See Kilburn v. Bennett, 3 Metc. 199; Bulkley v. Williamstown, 3 Gray, 493; Cole v. Cheshire, 1 Gray, 441; Thorndike v. Boston, 1 Metc. 242; Reeder v. Holcomb, 105 Mass. 94; Otis v. Boston, 12 Cush. 50, 51; Briggs v. Rochester, 16 Gray, 337; Colton v. Longmeadow, 12 Allen, 598; Borland v. Boston, 132 Mass. 89. The statement in Borland v. Boston, by the court, that "we cannot adopt a rule which shall make liability to taxation depend upon proximity to a state line," is dictum; and see pages 99 and 100. Native domicile reverts more easily than acquired domicile. Hallet v. Bassett, 100 Mass. 167, 170; Otis v. Boston, ubi supra. See Greene v. Greene, 11 Pick. 414. The proposition that the transaction between the plaintiff and Reeves was admissible carried with it the admissibility of declarations made at the time explanatory of the transaction. Lund v. Tyngsborough, 9 Cush. 36. See, to the point that, when the animus is in question, evidence of transactions with other persons than the party to the record is admissible: Butler v. Watkins, 13 Wall. 456; Castle v. Bullard, 23 How. 172; Friend v. Hamill, 34 Md. 298; Best, Ev. (Chamberlayne's Ed.) § 506, and note. See Com. v. Damon, 136 Mass. 448. Upon the question of the rejection of evidence on the ground of remoteness, or want of reasonable connection between the principal and evidentiary facts, see Best, Ev. § 255, Scott v. Berkshire Co. Sav. Bank, 140 Mass. 161, 162, 165, 166, 2 N.E. 925; Com. v. Greene, 111 Mass. 393, 394.
Chas. J. McIntire, for defendant.
The conversation offered, which plaintiff had with Reeves, was properly excluded. The plaintiff admits that at the time his domicile was, and had been for about 15 years, in Cambridge, and he does not pretend that he then had any immediate intent to change his domicile. But, if evidence was admissible which showed that his intention on going to Cambridge to live was only to stay there temporarily, the evidence offered to be put in does not support that theory. He declines to accept a nomination to a political office, and says he "had no connection with or interest in the affairs of Cambridge," which might all be true, and still it would not necessarily follow that it was his intention to be there only for a temporary purpose. The instructions and directions which plaintiff gave to his superintendent, offered in evidence, are private conversations with a third party, in the absence of the defendant, and inadmissible. Baxter v. Knowles, 12 Allen, 114; Lucas v. Trumbull, 15 Gray, 306; Carrigg v. Oaks, 110 Mass. 144. Therefore the declarations which plaintiff made at the time, not being made while doing any act in connection with his alleged removal from Cambridge, were properly excluded. Wright v. Boston, 126 Mass. 161. It was, moreover, a recital of past transactions and past purposes, and not competent. Salem v. Lynn, 13 Metc. 544; Haynes v. Rutter, 24 Pick. 242. The conversations with Dearborn, and also with Packer, took place about the time when plaintiff had his controversy with the assessors of Cambridge, and probably before he paid his tax for 1881. They are declarations in his own favor. Thorndike v. Boston, 1 Metc. 242; Cole v. Cheshire, 1 Gray 441; Kilburn v. Bennett, 3 Metc. 199; Reeder v. Holcomb, 105 Mass. 93. The question relating to rendering a tax-bill for the taxes of 1884 had been already answered in another form by the plaintiff, and the testimony of the assessor that plaintiff was not taxed for that year rendered the question entirely immaterial.
OPINION
It is the policy of the law that no person shall escape civil responsibility for want of a domicile, and therefore it is held that every person retains his domicile of origin until he has acquired another, and that he cannot abandon his domicile, whether original or acquired, unless and until he acquires another. The fact of domicile is shown by acts of residence with the intention of making the place of residence a home. A man cannot elect to make one place his home for the general purposes of his life, and another place his home for the purpose of taxation. So far as the right or liability to be taxed depends upon domicile, it is an incident of domicile. The controlling reason why a man changes his domicile may be in order to avoid taxation in the place where he was domiciled; but, to accomplish this, he must actually change the place of his home. He cannot elect to be taxed in one place rather than another, except by living in the place, and making it the place of his principal residence. Whether the residence is continuous or occasional; whether it is intended to be temporary or permanent; and the purposes for which the residence is established or continued,--are facts which are relevant in determining whether the residence is of such a character as to constitute a domicile. But a change in the domicile of a person cannot be effected by an intention in the mind to make the change unless it is accompanied by an actual change in the place of abode.
The plaintiff had acquired a domicile in Cambridge, and the issue of fact was whether he had abandoned this domicile, and acquired another in Greenland, New Hampshire. The plaintiff contended that he had changed his domicile from Cambridge to Greenland "on or about the month of October of the year 1881." The court rightly excluded the evidence that the plaintiff, in the autumn of 1880, declined to accept a nomination for the common council of the city of Cambridge, or to serve if elected, "on the ground that he had no connection with or interest in the affairs of Cambridge." Such evidence, if admissible under any circumstances, could only be admissible upon the question whether at that time he was domiciled in Cambridge; and this was not in dispute. As evidence that the plaintiff's interest in Cambridge was slight, and therefore that it was probable that he would some time break the connection, it is too indefinite and remote to be admitted as evidence to show that he afterwards actually abandoned his domicile in Cambridge, and acquired another in Greenland.
The second exception is to the exclusion of the statement made by the plaintiff, upon the farm of Greenland, in November, 1881, to the superintendent, when giving him instructions in regard to work to be done upon the farm. The statement was "that he had now made Greenland his residence and domicile, and that he wished to be taxed there, and to vote there, and to become a citizen of the town, and that he had left Cambridge as a resident."
The third...
To continue reading
Request your trial