Thayer v. City of Boston

• Decision Date: 23 March 1878
• Citation: 124 Mass. 132
• Parties: Nathaniel Thayer v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 132

Nathaniel Thayer v. City of Boston

Supreme Court of Massachusetts

March 23, 1878

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Worcester. Contract to recover the amount of a tax, assessed by the defendant city on the personal property of the plaintiff on May 1, 1876, and paid by the plaintiff under protest.

At the trial in this court, before Morton, J., it appeared that in 1869, the plaintiff was an inhabitant of Boston, where, since his coming of age, he had lived with his family and paid taxes; that he there had a dwelling-house and an office for business, where his account books and valuable papers were kept; that he complained of the increase of his taxes in the previous year, and informed the assessors that, if they were again increased, he would pay no more taxes in Boston; that in the assessment of the following year his taxes were increased, and he accordingly gave notice to the assessors of Boston and to the assessors of Lancaster that he had removed his residence to the latter place, where he should be thereafter taxed; that the plaintiff was born in Lancaster, in 1808, and, at the time of giving the notice, owned the place formerly belonging to his father, where he was born; that upon this place, in 1860, he had erected a new dwelling-house, and afterwards lived there a portion of each year with his family, going from his house in Boston early in June and returning in October or November following; that, after giving the notices, he continued to live there with his family as before, for a part of each year, voting and being taxed only in that town, taking part in town meetings and occasionally serving on town committees; that, on May 1, 1876, he was, with his family, in actual occupation of his house in Boston; that at this time, and since 1865, when he retired from business, he had been engaged in no business except looking after his property; that he had, for some years before 1869, entertained the idea and intention, and declared the intention, of at some time removing his residence from Boston to Lancaster, but had not, before 1869, fixed a time in his mind. The plaintiff, on cross-examination, testified that Boston was, and had been, ever since he was married, the principal place of his social and domestic life; and that the greater part of his family expenditures had been there made; that he thought he did no act to change his residence in 1869, except to give the notices, and that he may have voted in Lancaster the following year; and that the mode of life and habits of himself and family in regard to living in Lancaster were very much the same after giving the notice as before.

The defendant contended that the motive of the plaintiff, in giving the notice to the defendant and to the town of Lancaster, and in professing to make a change of residence in 1869, was merely to change the place where he should thereafter pay his taxes, without changing his mode of life or home in any other particular, and that this was done solely to enable him to pay a smaller sum for taxes, and to avoid being taxed on a portion of his property for which he was legally liable to taxation. It appeared in evidence that he was in fact taxed on a smaller amount of personal property in Lancaster than in Boston; and he was asked, on cross-examination, the following question: "What amount of personal property had you, on the first of May, 1868, not exempt from taxation by the statutes of Massachusetts?" He answered this by saying that he had not in Massachusetts more than a specified amount of personal property on which he was not taxed elsewhere; that he could not say what the statutes of Massachusetts exempted. He was then asked, "What amount of personal property had you?" The witness declined to answer this question; and the judge refused to order him to answer. The witness also testified that, in estimating that he was overtaxed in Boston, he did not consider that he was taxed on stock owned by him in the Chicago, Burlington and Quincy Railroad Company, because that was taxed in every school district, and he paid taxes on it as a stockholder. He was then asked, "How much is that?" This question the judge refused to compel the witness to answer; and the defendant excepted to the refusal to compel both questions to be answered.

The defendant asked the judge to instruct the jury as follows:

"1. The burden of proof is on the plaintiff throughout to establish all the facts in controversy in this suit, and especially that he was not taxable in Boston on May 1, 1876.

"2. If the plaintiff, on May 1, 1876, was an inhabitant of Boston or a resident in that city (the two expressions being for the purposes of this case identical) he was there taxable.

"3. Prima facie, the plaintiff was an inhabitant of Boston and there resident, if he and his family were, on that day, living in a house of his own in the same way in which he had lived there during those years in which he admits that he had been a taxable inhabitant of Boston.

"4. A man cannot change his taxable domicil from one place to another in this Commonwealth by a mere declaration of his intention to make such a change without any alteration of the place or mode of life of himself or his family.

"5. Every citizen of Massachusetts is taxable in that place where his home is; meaning by this word the principal place of abode of himself and his family.

"6. If a citizen has two residences in this state, in each of which he resides with his family a part of the year, he is taxable where he resides on May 1 of any year.

"7. If the principal place of abode of a man and his family is in one place, he cannot, by choice or declaration of intention, set up a domicil for taxation elsewhere.

"8. If the plaintiff and his family have every year resided in Boston on May 1, and also a much longer portion of the time than in Lancaster, and if Boston has been uniformly the chief centre of their social and business interests and relations, then the jury must find for the defendant, notwithstanding any declaration or intentions of the plaintiff as to where he intended to be taxed or to reside.

"9. The burden of proof is on the plaintiff affirmatively to satisfy the jury that Boston is not his real, true and actual home.

"10. The jury is not warranted upon the evidence in finding a verdict for the plaintiff."

The judge declined to give the instructions requested, except so far as the instructions given embrace them, and instructed the jury as follows:

"The burden of proof is upon the plaintiff to prove to your satisfaction, by a fair preponderance of the evidence, all the facts which are necessary in order to make out his case. The question for you to determine is, whether or not the plaintiff has proved this. The laws of the Commonwealth provide that any man shall be taxable in the city or town of which he was an inhabitant on the 1st of May of each year. What does the statute mean by a man's being an inhabitant of a town on the 1st of May? Very clearly by 'inhabitant' is not meant any man who may happen to be personally in the town on the 1st of May. To use the illustration that has been used to you in argument, if it meant that, all of us would be inhabitants of and taxable in the city of Worcester. ^[*] But by 'inhabitant' is meant any man who has a home in a place; any man who has there established a permanent home for himself and his family, if he has one; who there performs his municipal duties and exercises his municipal rights, and thus, as well as in other matters, identifies himself with the town as his home. In very many cases, certainly in the case of a very large majority of the people of this Commonwealth, there is no question about where a man's home is. Most of us have but one dwelling-house; most of us have our business, our family, connected solely with one town or city of the Commonwealth, and everybody recognizes at once that that is our home. But there are a great many cases where a man has one place, where he and his family reside, in one town, and he does business in another. For instance, the observation and experience of all of us teach us that the daily trains running to and from the city of Boston carry and return thousands of people who live in the adjoining towns, and yet who do their business in Boston. Having their place of business there, the centre of their business, their whole business there, does not make them inhabitants of Boston. They are still inhabitants of that town where they have their home; where they have established a permanent home for themselves, their wives, their children, their families; the town with which they are identified as being inhabitants, as exercising municipal duties, as holding municipal offices, as having their abiding place; the place, in other words, where they have their home; I am compelled to come back to the same word, because neither in the English nor any other language do I know of a synonym or equivalent for the homely Saxon word 'home.'

"Suppose a third case. Suppose a man lives in one of the country towns adjoining Boston, and has a house in the city which he occupies during the winter months. Or reverse the supposition, and suppose that a man has a house in Boston and has another house by the seaside, or in some country town, which he occupies during the summer months. Which is his home? Now, you come to a case where it is a little more difficult to decide. A man can have but one home; he cannot be an inhabitant of two places at the same time. But, in the case which I am now supposing, where a man has two houses, it depends very largely indeed upon the question: What...