Mack v. Jones, 21 N.H. 393

Mack v. Jones

21 N.H. 393 | Superior Court of New Hampshire | 1850

Perrey, J.

When this tax was assessed in April, 1849, the land taxed was in possession of the plaintiff, who claimed to own it under the title set out in the case. By the Rev. Stat. ch. 39, § 2, all real estate, except houses of public worship, school houses, seminaries of learning, and property of the State and county, whether improved or unimproved, and whether owned by residents or non-residents, is liable to be taxed. And ch. 40, § 7, provides that all real and personal ¡moperty shall be taxed to the person claiming the same, or to the person who is in the possession and actual occtipancy thereof. The plaintiff claimed the land, and was also in the possession and actual occupancy, and, therefore, by the express and unequivocal terms of the statute, the land was taxable to him; and it was the duty of the defendants to assess this tax, unless the grant or stipulation of the town, in their conveyance to Silas Mack, has the effect in law to confer on this land a perpetual exemption from the common burden of taxation.

Several questions might be raised as to the construction of this conveyance of the town to Silas Mack, which do not appear to be material to the determination of this case. The deed is denominated a lease ; but there is no reservation of any rent or other duty or service to constitute the relation of landlord and tenant. If the deed can take effect according to the popular sense of the language used, and the probable intention of the parties, Silas-Mack and his assigns, since payment of the securities mentioned in the deed, have been the absolute and unconditional owners of *395the land. The town retains no interest whatever. There are, however, no words of inheritance used'in the deed, and, unless the rule of the common law has been relaxed in this State, Silas Mack took only an estate for his own life. But it is not material to the decision of the question raised in this case, whether the estate conveyed by the deed of the town continues, or'was determined by the death of Silas Mack. For, if the land in law belongs to the town, it is still liable to be taxed by the statute. The property of the State and of counties is exempted, but not the property of towns. And the land being taxable, it was by the statute to be taxed to the plaintiff who was in possession and claimed to own it. The case is reduced to the single question, whether a town owning land can, by grant or stipulation in a conveyance, exempt the land from taxation in the possession of the purchaser and his assigns 1

The power of taxation is an attribute of sovereignty belonging to the people ; and this power, so far as it has been granted at all, has been delegated under our constitution to the legislature. Bill of Rights, article 28; Brewster v. Hough, 10 N. H. Rep. 138.

Towns have no power to assess any tax not authorized by statute, nor to change or modify the public law regulating taxation. Dillingham v. Snow, 5 Mass. 547; Stetson v. Kempton, 13 Mass. 272.

If the power claimed for the town in this case were admitted, it would defeat the provision of the statute, which in plain terms required this land to be taxed, and shift the burden imposed by the general law of taxation from this land to the polls, and the other taxable property in the town. If this land could be privileged with perpetual exemption from taxes by the act of the town, any land in any town that, by foreclosure of a mortgage, purchase of a poor farm, or in any other of the numerous ways in which towns may acquire title to land, should become the temporary property of the town, might be forever discharged from the common burden of taxation; and this would, of - course, add proportionally to the weight of taxes assessed elsewhere. In short, the exemption attempted to be conferred on this land by the *396grant of the town is in direct conflict with the statute made undér the constitution, which requires the land to be taxed. If this power were conceded to towns, and acted on generally, it would disturb the whole system of taxation imposed by law, and destroy that equality in the distribution of the public burdens which it has been a principal object with all the governments in this country to establish and secure.

We are very clear, that the attempt of the town to grant this land a perpetual immunity from taxes was illegal and void.

According to the agreement stated in the case, there must be

Judgment for the defendants.