Hooper v. Mayor of Baltimore

12 Md. 464, 1859 Md. LEXIS 1

• Court: Court of Appeals of Maryland
• Decided: January 6, 1859
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from a pro forma judgment of the Superior court for Baltimore city, on the following statement of facts:

££It is admitted in this case that the defendant is a bona fide and actual resident of Baltimore county, but having his place of business, as a merchant, in the city, and that this action is instituted to recover from him the sum of five hundred and five dollars, being the amount duly assessed in the city of Baltimore, as city taxes on the ship Anne E. Hooper, the property of the defendant, registered in the custom-house at said city, and sailing out of the port of Baltimore. It is agreed that the plaintiff is entitled to recover the said sum of money and costs, and that the court shall give judgment therefor, provided the court shall be of opinion that the said ship is lawfully to be valued to the said defendant, for the purposes of city taxation in the city of Baltimore, and that he may lawfully be compelled to pay city taxes upon the said ship, notwithstanding his residence in Baltimore county. It is further-agreed that the plaintiff is not entitled to recover, and that the court shall render judgment for the defendant, with costs, provided the court shall be of opinion that the said ship should be valued to the defendant, and that he should be taxed thereupon in the county where he resides.

“It is agreed that either party may have an appeal from the judgment of the Superior court, and that the said court may make inferences of fact, in their discretion, from the facts herein stated. It is further agreed that the Court of Appeals may, in case of appeal, render such judgment upon this statement and such inferences, as they may deem according to law.”

The question presented by this statement of facts is simply this: is a vessel owned under the circumstances detailed, liable to pay taxes, for municipal purposes, to the city of Baltimore?

It is claimed, on behalf of the city, that such liability exists because of the provisions of the act of 1841, chapter 23, sec. 9, and of those of the act of 1852, chapter 337, sec. 9. The words of the latter, so far as this question is involved — and they are the same as in the former act — are as follows: “All. property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she may reside.”

It is urged that notwithstanding the owner of the ship Anne E. Hooper “is a bona fide and actual resident of Baltimore county,” she is liable to taxation for city purposes, because she is registered in the custom-house at said city, and is “sailing out of tire port of Baltimore,” and because she is “permanently located elsewhere within the State” without the limits of Baltimore county, the domicil of her owner.

It was on the union of all these circumstances, and not on any one in particular, it was contended she was liable to city taxation. First, then, as to the effect of her registration at the custom-house, in Baltimore. We attach — and we also understood die counsel for the city to attach — but slight importance to this fact. Under the existing laws of Congress, so long as Mr. Hooper owns the vessel, and retains his residence in Baltimore comity, she can be registered nowhere else than at the custom-house, in Baltimore city.

By the act of Congress of the 2nd of March 1799, entitled “An act to regulate the collection of duties on imports and tonnage,” it is provided “that in the State of Maryland there shall be ten districts,” and that “the district of Baltimore shall include Patapsco river, Turkey Point, Spes Utise Island, and all the waters and shores on the west side of Chesapeake Bay, from the mouth of Magetty river, which shall not be included in the district of Havre-de-Grace; and a collector, naval officer and surveyor for the district shall be appointed, to reside at Baltimore, which shall be the sole port of entry.” And by the act of Congress of December 31st, 1792, it is provided that every ship or vessel to be thereafter registered, “shall be registered by the collector of the district in which shall be comprehended the port to which such ship or vessel shall belong at the time of her registry, which port shall be deemed to be that at or nearest to which the owner, if there be but one, or if more than one, the husband or acting and managing owner of such ship or vessel usually resides. And the name of the said ship or vessel, and of the port to which she shall so belong, shall be painted on her stern,” &c.

Under these acts of Congress, it is clear that the Anne E. Hooper could only have been registered at the custom-house in Baltimore, and she, in consequence of such registration, was made to belong to that port, but the district of which that is'the port, as is palpable from the language of Congress, is not confined to the limits of the city.

The circumstances principally relied upon by the city, were the fact of sailing out of the port of Baltimore, and that she was “permanently located” elsewhere than at the place of residence of the owner. If, in one sense, as was said in the case of Hays vs. The Pacific Mail Steamship Co., 17 Howard’s S. C. Rep., 596, a vessel engaged in foreign trade can have a domicil, it must be regarded as that of the home-port, which, as we have seen in the present instance, may extend over a much larger territory than the limits of the city; and it would therefore be just as proper for Baltimore county or Anne Arundel county, as for the city of Baltimore, to impose a tax for municipal purposes, for all of the one, and a part of the other, is embraced within the district of which the city of Baltimore is the port of entry. If, therefore, there was no other consideration affecting the case, the city would clearly have no right to tax, she being in no better condition tiran the other portions of the registration district. But, in truth, the whole question depends upon the meaning of the words of the act of 1852. It cannot be denied, nor was it, that as a general principle, all. personal property, unless affixed to the freehold, is, in contemplation of law, without a location, other than the residence ol its owner. Wherever he or she may reside, there is, by operation of law, located the property. In this particular the rule being different from that applicable to realty. In the one case the domicil of the owner determines the law, whilst in the other the law of the rei sites governs. So universal is the recognition of this distinction, that it can scarcely be necessary to cite authorities in its support. It is the law of nations. Lord Loughborough, in Sill vs. Worswick, 1 Hen. Bl. Rep., 690, has said, “it is a clear proposition, not only of the law of England, but of every country in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner, both with respect to the disposition of it, and with respect to the transmission of it, either by succession or by the act of the party. It follows the law of the person. The owner, in any country, may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession.” And Lord Chief Justice Abbott said: “Personal property has no locality. And even with respect to that, it is not correct to say that the law of England gives way to the law of the foreign country; but that it is part of the law of England that personal propeity should be distributed according to the jus domicilii. ’ ’ Justice Story, after treating of the history of this rule, in section 379 of his work on the Conflict of Laws, says: “If the law rei sites were generally to prevail in regard to movables, it would be utterly impossible for the owner, in many cases, to know in what manner to dispose of them during his life, or to distribute them at his death, not only from the uncertainty of their situation in the transit to and from different places, but from the impracticability of knowing, with minute accuracy, the law of transfer,” &c. Again: “'Any change of place at a future timé might defeat the best considered will, and any sale or donation might be rendered inoperative from the ignorance of the parties of the law of the actual situs at the time of their acts. These would be serious evils pervading the whole community, and equally affecting the subjects and the interests of all civilized nations. But in maritime nations, depending upon commerce for their revenues, their power and their glory, the mischief would be incalculable. A sense of general utility, therefore, must have first suggested the doctrine, and as soon as it was promulgated, it could not fail to recommend itself to all nations by its simplicity, its convenience and its enlarged policy.” These references are abundantly sufficient to show the rule and its policy. They might be multiplied to almost any extent.

Although the general rule is as we have stated it to be, yet it is perfectly competent to the sovereign authority to abolish or modify it, and the question here is: has it been so modified as to bring this vessel within the taxing power of the corporation of Baltimore? The words of the act are, “All property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she may reside.”

Apart from the general principle to which we have adverted, it may be very properly doubted whether a vessel built for and actually employed in foreign trade, can be said to be “permanently” located any where. The idea of its permanent location is at war with the very purpose of its creation. Yessels are not constructed to rot at the wharf or dock, but to carry, from place to place, cargo; their very use necessarily implies transition — the absence of permanency of locality. Besides, under our act of Assembly, to take personal property out of the general rule, so far as taxation is concerned, it must be “permanently located elsewhere within the State” other than within the county or city of the residence of its owner. The ship in this case, clearly, is not permanently located “within this State.” Her mission is on the seas:—

(Decided January 6th, 1859.)

“Her march is o’er the mountain wave,

Her home is on the deep.”

The desire on the part of the tax-payers of a city to subject the personal property of non-residents, who transact their business within its limits, to a proportionate share of its burdens, is far from unreasonable; but this desire cannot be gratified unless the legislative will allows it, and this permission is not to be gathered by conjecture, but from the plain and unequivocal language in which it should be expressed. In Dwarris on Statutes it is said, at page 695, uAs a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.”

If the legislature hereafter should deem it wise and just to subject property held as is the vessel in question to city taxation, it can adopt the policy of New York and Massachusetts, but until it does do so in plain and unmistakable terms, the courts must adhere to the long established doctrine.

Being of opinion that the vessel, Anne E. Hooper, is not liable to city taxation under the authority given in that event by the case stated, we reverse the judgment of the court below, and enter judgment for the appellant, with costs.

Judgment reversed.