Hittinger v. City of Boston

29 N.E. 214, 139 Mass. 17, 1885 Mass. LEXIS 6

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1885
• Status: Published

Opinion

Holmes, J.

The plaintiff’s stock in trade was not kept in Boston, and therefore was not taxable there, even if he had a shop or store in that place. The Rev.. Sts. e. 7, § 10, cl. 1, provided for taxing a stock in trade in the town where it was, if the owner had a store, shop, or wharf in that town, This required the stock to be in the town where it was taxed, and probably required it to be there on the first day of May. The latter requirement was done away with by the St. of 1839, c. 139, § 1, but otherwise the statute was kept substantially unchanged. The section of the Revised Statutes and the St. of 1839 were consolidated in the Gen. Sts. c. 11, § 12, cl. 1, (Pub. Sts. c. 11, § 20, cl. 1,) and the language was slightly abridged, so that it no longer in terms required the stock to be in the place where it was taxed, if the owner had a store there. But there is no intimation of an intent to amend the acts thus brought together, and there is a strong presumption that it was not intended to introduce a most important change of principle sub silentio. Furthermore, the carefully limited words “ whether such property is within said places or elsewhere on the first day of May of the year when the tax is made,” are inconsistent with the intent to disregard entirely the place or destination of the stock throughout the year, if only the owner has a store or shop in a certain town. The stock must be domiciled in the place where the shop is, to fall within the section relied on by the defendant. See Boston Loan Co. v. Boston, 137 Mass. 332; Hittinger v. Westford, 135 Mass. 258; Huckins v. Boston, 4 Cush. 543. Judgment for the plaintiff affirmed.