Wlnkley v. Town of Newton

• Decision Date: 11 March 1892
• Citation: 36 A. 610,67 N.H. 80
• Parties: WLNKLEY et al. v. TOWN OF NEWTON.
• Court: New Hampshire Supreme Court

36 A. 610

67 N.H. 80

WLNKLEY et al.

v. TOWN OF NEWTON.

Supreme Court of New Hampshire. Rockingham.

March 11, 1892.

Application by Winkley & Maddox to secure the abatement of a tax imposed upon property belonging to applicants, and located in the town of Newton. From the refusal of the selectmen to abate the tax, plaintiffs appeal. Case discharged.

The plaintiffs, residing in Boston, Mass., are engaged in the business of cutting, storing, and selling ice; owning ice houses in the town of Newton, in which they stored their ice, cut from a pond adjacent. A small portion of the ice is sold from the ice houses to customers in Newton, but the greater portion of it is taken to Boston and there sold. The plaintiffs have an office and place of business, but no store house, in Boston, the ice being taken from the ice houses at Newton to Boston for delivery as wanted. In April, 1889, the plaintiffs had 24,000 tons of ice stored in their ice houses at Newton, upon which the town assessed a tax of $214. Plaintiffs were also taxed in Boston in 1889 for the ice stored at Newton, as stock in trade. The contention of the plaintiffs was that the ice was not taxable in Newton, and that, if taxable, they were entitled to an abatement of $102 on account of overvaluation.

Eastman & Marston, for plaintiffs.

Frink & Batchelder, for defendants.

PER CURIAM.¹ Most questions relating to the taxation of property, or to its exemption from taxation, depend primarily for their solution upon the prevailing constitutional policy of equality or inequality in the division of the public burden. If it is assumed that all tax laws are iniquitous, that their enforcement is to be restricted by judicial decision within the narrowest possible limits, and that a vigorous resistance to the collection of taxes on all grounds is to be encouraged and supported by a resort to technical and specious argument, the result, in very many cases, would be against the validity of the tax. Inequality of taxation, resulting from judicial exemptions, or from the imposition of twofold burdens on a part of the taxpayers, may be in accordance with the policy of the law in some jurisdictions, where the doctrine of an approximate equality of taxation has not been developed to the extent that it has been in this state. A presumption that no property is taxable which does not fall within the literal language of the statute, when construed as a highly penal statute and in derogation of common right, may account for many apparent failures of justice, and for serious criticisms of judicial decisions. But where there is a fundamental presumption that the legislative purpose in the enactment of tax laws is that each citizen shall bear his just and proportionate share of the public expense, that no man shall escape his part of the common burden and throw it upon his neighbors, and that property of the same class shall not be exempt from taxation in a few cases and not in all, the interpretation of these laws is not governed by narrow and technical rules, and their spirit and purpose may often be found to be broader or more limited than their literal language might seem to Import. "The unconstitutionality of unequal taxation is too plainly declared by our constitution, and too well settled by repeated decisions made during the last fifty-three years, to be debatable. A disproportional, unequal assessment, so far as it is disproportional and unequal, is an act, not of taxation, but of confiscation, destitute of that element of equal rights which, under our constitution, is an essential part of the definition of law." Boston, C. & M. R. v. State, 60 N. H. 87, 94. "If, then, equality and justice is the basis of all constitutional taxation, a statute founded on any other principle cannot be upheld." State v. United States & C. Exp. Co., Id. 219, 236. "By New Hampshire law, taxation is not extortion practiced upon the people by an oppressor whom they circumvent by artifice, and an astute application of technical rules to his methods of procedure. It is a division among themselves of the expense of their own government of themselves,—a division made by themselves, through their own agents, in pursuance of their original contract." Edes v. Boardman, 58 N. H. 580, 589. There is a strong presumption "that many clauses of the statutes, which, taken separately and literally, would make some property taxable twice or thrice, are not to be taken separately and literally, but are to be understood as subjecting the property they describe to single taxation only, and as designed, by their various and comprehensive descriptions, to prevent property escaping single taxation." Robinson v. Dover, 59 N. H. 521, 525. The decision in Cheshire County Tel. Co. v. State, 63 N. H. 167, is based upon the established doctrine of the constitutional equality of taxation, and not upon a strict or literal construction of statutes. It is there said: "By the strict letter of the law, stock in telegraph companies is taxable, under Gen. Laws, c. 53, § 5, and also their property, under Gen. Laws, c. 62, §§ 14, 15; yet both were not intended to be, and are not, taxed," because "the court is bound to presume that the legislature did not intend to violate the constitution." See, also, Opinion of the Court, 4 N. H. 565, 567; Smith v. Burley, 9 N. H. 423; Smith v. Town of Exeter, 37 N. H. 556; Kimball v. Milford, 54 N. H. 406; Morrison v. Manchester, 58 N. H. 538; Berry v. Windham, 59 N. H. 288; First Nat. Bank v. City of Concord, Id. 75; Franklin Street Soc. v. Manchester, 60 N. H. 342; Curry v. Spencer, 61 N. H. 624.

The statute under which the tax in question was assessed (Gen. Laws, c. 54, § 9) provides that, "animals liable to be taxed kept in any town; and stock in trade employed in any town, owned by a person not resident therein, shall be taxed in such town to the owner or person having the care thereof on the first clay of April, whether such person be a resident of the town or not," etc. This statute is not a statute of exemptions. It provides, in plain and unambiguous language, that a nonresident owning stock in trade in a town must bear his just and proportional share of the public burden. It does not provide that special favors in this respect are extended to him because he happens to reside elsewhere, or that his liability to be taxed for the same property in some other jurisdiction shall excuse him from paying equitably for the benefits and protection he receives here from our laws and institutions. Such a construction would do violence to the language of the statute, and would attribute to the legislature a purpose to disregard and overturn the constitutional requirement of equality of taxation. While the imposition of two taxes on the same property in one assessment, or a double valuation, would be unjust, because it would be double taxation, subjecting the owner of the property to twice the burden he ought to bear, the omission to tax it at all would be equally unjust and inequitable, because it would be casting a burden upon his neighbors which the owner himself ought to bear.

The fact that the plaintiffs' ice, stored in this state, has been taxed to them in Massachusetts, and that they have paid the tax there, is immaterial. The question is, is it rightfully and legally taxable here? If it is, then its taxation in another state does not render its taxation here wrongful and illegal. If the legislature of Massachusetts should authorize the taxation there of New Hampshire real estate owned by its residents, its taxation here would still be in harmony with, and not in opposition to, our rule of equality, which applies to all real estate located in this state. To recognize such a right in another jurisdiction would introduce the most glaring inequality in the apportionment and collection of the public expense. The...