Thayer v. City of Boston

124 Mass. 132, 1878 Mass. LEXIS 250

• Court: Massachusetts Supreme Judicial Court
• Decided: March 23, 1878
• Status: Published

Opinion

Colt, J.

The plaintiff’s right to recover back the tax paid by him to the city of Boston depends on whether he was, within the meaning of the statute, an inhabitant of that city on May 1, 1876, and subject to taxation there. Gen. Sts. c. 11, § 12. The case requires the application of those rules which determine where a citizen is legally taxable, who has more than one place of residence in this state, situated in different municipalities, in each of which he lives with his family for a part of each year.

Only so much of the evidence at the trial as was thought necessary to present the questions of law raised by the defendant’s requests for instructions, and by the exceptions taken to the exclusion of evidence, is reported. The judge declined to give the instructions requested, except so far as they were embraced in the instructions given; and, by the terms of the report, judgment is to be entered on the verdict for the plaintiff, unless there was error in the refusal to instruct the jury as requested, or the evidence offered was improperly excluded. The discussion is limited to these points.

The jury, under the instructions which were given, must have found that the plaintiff, after 1869, and before May 1, 1876, when this tax was assessed, with an honest intention to change his domicil or permanent residence from Boston to Lancaster, to make the latter the place of his permanent and real home, as distinguished from a mere place of temporary summer resort, did acts' which amounted to such change, and made himself an inhabitant of Lancaster. The weight of the evidence on which this finding was made is not for our consideration. This is not a motion to set aside a verdict as against the weight of evidence, and it is enough upon this report that we cannot, as a matter oi law, declare that the evidence would not, under the instructions given, justify the finding. The question remains whether the instructions requested ought to have "been given, in whole or in part, or ought to have been given in the language requested.

The statute declares that all personal property “ shall be assessed to the owner in the city or town where he is an inhabitant on the first day oí May.” By the decisions of this court it is held that in cases of this description the inhabitancy which fixes the place of taxation must be practically equivalent to that legal residence which establishes the domicil of the tax-payer, although the words do not always have precisely the same meaning. Briggs v. Rochester, 16 Gray, 337. The Constitution of this Commonwealth declares that, to remove all doubts concerning the meaning of the word “ inhabitant,” “ every person .shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this state, in that town, district or plantation where he dwelleth or hath his home.” Const. Mass. c. 1, § 2, art. 2.

It is always a question of fact where the place of a man’s domicil is. As to most persons it is determined at once by the decisive facts which show permanent and unchanging residence in only one place. As to such persons, the question of domicil, that is, the question where they are to be taxed, or where they have a right to vote, presents no difficulty. There can be no right of election to the tax-payer between two places, when one is already fixed by the actual facts which go to establish domicil. It is only when, the facts which establish permanent residence and domicil are ambiguous and uncertain, in the absence of any settled abode, and when the real intention of the party cannot be ascertained, that the question becomes difficult. It may then require an examination into the motives of the man, his habits and character, his domestic, social, political and business relations, for a series of years; and the answer will depend in the end upon the weight of evidence in favor of one of two or more places. It is evident that, with the increasing number of those who live each year in different places, the increased facilities for travel, and the great temptation to escape taxation by a change of domicil, cases of the latter description are becoming more common.

It is said to be difficult, if not impossible, to give an exact and comprehensive definition of domicil. No test which can safely be applied to all cases has yet been established. In Lyman v. Fiske, 17 Pick. 231, 234, it was said that, “ in general terms, one may be designated as an inhabitant of that place, which constitutes the principal seat of his residence, of his business, pursuits, connections, attachments, and of his political and municipal relations. It is manifest, therefore, that it embraces the fact of residence at a place, with the intent to regard it and make it his home. The act and intent must concur, and the intent may be inferred from declarations and conduct.” “ But such an election to be taxed in one town rather than another is only one circumstance bearing upon the question of actual habitancy, and to be taken in connection with the other circumstances, to determine the principal fact.” In Sears v. Boston, 1 Met. 250, it was declared that “actual residence, that is, personal presence in a place, is one circumstance to determine the domicil, or the fact of being an inhabitant; but it is far from being conclusive. A seaman on a long voyage, and a soldier in actual service, may be respectively inhabitants of a place, though not personally present there for years. It - depends therefore upon many other considerations besides actual presence.” In Briggs v. Rochester, 16 Gray, 341, it was said that “the words ‘where he shall be an inhabitant on the first day of May,’ mean where he shall have his home on that day.” In Otis v. Boston, 12 Cush. 49, that “ a man is properly said to be an inhabitant where he dwelleth and hath his home.” In Abington v. North Bridgewater, 23 Pick. 170, 177, 178, that “it depends not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his domicil or home in one place, overbalance all the like proofs, tending to establish it in another; ” and that “ if we adopt the definition from the Constitution, which seems intended to explain the matter and put it beyond doubt, it will be found, on examination, to be only an identical proposition, equivalent to declaring, that a man shall be an inhabitant where he inhabits, or be considered as dwelling or having his home, where he dwells or has his home. It must often depend upon the circumstances of each case, the combinations of which are infinite. If it be said to be fixed by the place of his dwelling-house, he may have dwelling-houses in different places; if it be where his family reside, his family with himself may occupy them indiscriminately, and reside as much in one as another; if it be where he lodges or sleeps, (yernoetat,') he may lodge as much at the one as the other.” See also Thorndike v. Boston, 1 Met. 242, 245; Harvard College v. Gore, 5 Pick. 370; Blanchard v. Stearns, 5 Met. 298; Opinion of Justices, 5 Met. 587; Williams v. Roxbury, 12 Gray, 21.

It is evident that the choice of the tax-payer, as between two places of residence, is an element to be considered in determining which is the real domicil; but a choice in favor of one place will not be permitted to control a preponderance of evidence in favor of another. The place of domicil, upon which so many important municipal obligations and privileges depend, is not left by the law to the choice of the citizen, except only as such choice may give character to existing relations and accompanying acts of residence which are not in conflict with it. As between different places, it may depend on a mass of evidence, which will generally include as one of its items the declared intention and choice of the party himself. The weight to be given to that intention, however honest, will depend largely upon the condition of all the evidence. If the evidence be equivocal and uncertain, then the choice may be sufficient to turn the scale; if the weight of it be one way, then an opposite intention or wish will be of little or no avail. Holmes v. Greene, 7 Gray, 299.

The true rule was plainly recognized in Chenery v. Waltham, 8 Cush. 327. The judge was there asked by the plaintiff, who sought to recover back a tax paid to the defendant, to rule that if the true dividing line between two towns passed through an integral portion of the dwelling-house occupied by him and his family, then he had a right to elect in which town he would be assessed on his personal property and become a citizen. This was refused, and it was ruled that if the house was so divided by the line as to leave that portion of it in which the occupant mainly and substantially performed those acts and offices which characterized his home (such as sleeping, eating, sitting and receiving visitors) in one town, then the occupant would be a citizen of that town, and no right of election would exist; and that, if the house was so divided by the line as to render it impossible to determine in which town the occupant mainly and substantially performed the acts and offices before referred to, then the occupant would have a right of election, and his election would be binding on both towns. The rule thus laid down was declared by the full court to be sufficiently favorable' to the - plaintiff, on the question of his right to elect.

In the law of domicil, it is settled that a person can have but one domicil at the same time, for the same purpose; that domicil, once acquired, remains until a new one is acquired; and that a new one is acquired only by a clear and honest purpose to change, which is carried into actual execution. Applying these maxims to the facts, in all disputed cases, it is the duty of the court to submit each case to the jury with instructions adapted to its peculiar aspects.

Upon a careful examination, we are satisfied that the instructions here requested, so far as they were not substantially given by the judge in,his charge, were properly refused. The jury were told that the plaintiff must prove all the facts necessary do make out his case, including the fact that he was not an inhabitant of Boston on the first of May, 1876. „ They could not have been properly instructed that he was primd facie such inhabitant “ 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 in Boston during those years in which he admits he had been a taxable inhabitant of Boston,” for such instruction was calculated to mislead the jury by excluding from their consideration the evidence of inhabitancy acquired in Lancaster. It would be stating a conclusion from one item of evidence bearing on the question, which is not in itself conclusive. The third request was therefore properly refused.

The fourth and seventh requests were embraced in the instructions, “ that the mere intention of purpose formed or expressed to change his home is not enough; he must do something which actually works a change óf home. The act of change and the intention must concur.”

The first part of the fifth request was given, and the judge was not required to give the definition of “ home ” contained in the last part. The principal place of abode of a man and his family, when it is only a temporary abode, is not his home in the sense here required.

The sixth request was properly refused, because the single fact of residence on the first of May, in the popular meaning of that word, is not conclusive on the question of inhabitancy or domicil

The eighth request was for an instruction that the facts therein recited were conclusive on the question of domicil, and left out of view all the evidence in the case which might possibly control those facts. It was properly refused.

The instructions which were given to the jury recognize in their whole tenor the rules of law applicable to the facts in this case. And the report does not reserve to the defendant the right to except to the phraseology of each sentence in the instructions given to the jury, but only the question whether there was error in the rulings on evidence which were excepted to, or in the refusals to instruct the jury as requested by the defendant.

The exceptions taken to the exclusion of evidence require brief consideration. On cross-examination, the plaintiff was asked, “What amount of personal property had you on the first of May, 1868, not exempt from taxation ? ” This question was answered. He was then asked “ What amount of personal property had you?’’and, upon his declining, the court refused to order him to answer. The next question objected to was as to how much tax the witness paid at the West on certain railroad stock there.

The exceptions to the refusal of the court to permit these questions cannot be sustained. The issue was whether the plaintiff, on the first of May, 1876, was an inhabitant of Boston. The motive which induced him to change to Lancaster was not material to that issue. A man may change his residence for the purpose of reducing taxation only, although he will be subject to a penalty if he escapes taxation by designedly changing or concealing his residence for that purpose. St. 1864, e. 172. The wish to change for that purpose does not tend to show any want of a real intention to change, but rather the contrary. As bearing on the honesty of his purpose to change his residence, the plaintiff was required to state what amount of taxable personal property he had on the first of May, 1868, but the.inquiry, what was the whole amount of his personal property, was quite different, and had more remote bearing on the case. The extent to which a witness may be cross-examined upon facts which appear to be material, only as showing his bias or testing his accuracy or credibility, is largely a matter within the discretion if the court, to the exercise of which no exception lies. Com monwealth v. Kelley, 113 Mass. 453. Commonwealth v. Lyden, 113 Mass. 452. Miller v. Smith, 112 Mass. 470.

Judgment on the verdict.