Ingram v. Cowles

23 N.E. 48, 150 Mass. 155, 1889 Mass. LEXIS 39

• Court: Massachusetts Supreme Judicial Court
• Decided: November 26, 1889
• Status: Published

Opinion

Holmes, J.

The plaintiff does not bring the taxed property within the exceptions made in the Pub. Sts. c. 11, § 20, els. 1, 2, to the general rule that property is to be assessed to the owner in the city or town where he is an inhabitant on the first day of May.

The saw-mill is not “ machinery employed in any branch of manufactures ” and “ situated or employed ” in Leverett, within the meaning of cl. 2. It is settled that the purpose of the requirements of the first clause “is, that the business shall be an established and not a transient one; that it shall have a local habitation in a town other than where the owner dwells.” Boston Loan Co. v. Boston, 137 Mass. 332, 336. Hittinger v. Westford, 135 Mass. 258, 261. Stinson v. Boston, 125 Mass. 348, 351. Huckins v. Boston, 4 Cush. 543. See Hittinger v. Boston, 139 Mass. 17. We think that this principle has some application to the second clause also, although it is to be drawn from different words, and that machinery cannot be said to be “situated or employed” in a place merely because it is temporarily in use there on the first day of May. The saw-mill in question was portable personal property, which had been moved from another town into Leverett in March, which in June was moved to a third town, and which has continued its migrations since that time.

Furthermore, we hesitate to say that sawing logs into boards is a “branch of manufactures,” and think it doubtful whether something more of a transformation of the raw material is not necessary to bring the employment within the clause. Hittinger v. Westford, 135 Mass. 258, 262.

The timber and sawed lumber do not fall within the first clause, because, so far as appears, the owners had no such occupation of a manufactory, store, shop, or wharf in Leverett as the clause requires. They may have been mere licensees in the temporary use of the land on which the saw-mill stood. Stinson v. Boston, and other cases, ubi supra. Again, it is not contended that the saw-mill was a store or shop. Boston Loan Oo. v. Boston, and Hittinger v. Westford, ubi supra. And it would be a shade more difficult to call it a manufactory than to call it machinery employed in a branch of manufacture.

As the whole tax on the personal property was unauthorized and void, the plaintiff cannot recover. There is no ground for requiring the defendants to pay under protest, and then to sue. The fact that there was a valid tax on real estate is immaterial. A tax on real estate is regarded as a separate and distinct tax. Preston v. Boston, 12 Pick. 7. Hicks v. Westport, 130 Mass. 478, 479.

Judgment for the defendants.