Moore v. Wilkins

| Superior Court of New Hampshire | Dec 15, 1839

Parker, C. J.

The statute of July 7, 1837, cited by the plaintiffs counsel, enacts, that “ the inhabitants of the several towns in this state shall annually exhibit to the selectmen a just and true account of their polls and estates, rateable by lawand that the “ invoice shall be taken of what the respective inhabitants had and possessed on the first day of April, and shall be taken sometime in the same month. And in case any person shall remore from any town on or after the first day of April, he shall pay his taxes that year in the town from which he removed.” 1 N. H. Laws 553.

By the term inhabitants, as here used, must be understood persons who have their homes in the towns where the invoice is to be taken, and not persons who are there for mere temporary purposes, having a home or dwelling place in some other town.

By another statute, passed June 26, 1837, “ every male inhabitant of each town in this state,” &c., being a native or naturalized citizen of the United States, of the age of twenty-one years and upwards, has a right, “ at the annual meetings of the inhabitants of said towns and places, to vote in the town or place in which he dwells and has his home.” 1 N. H. Laws 466. No doubt is entertained that such person is to vote in the place of his domicil. So, one enrolled in the militia is to perform military duty in the place of his domicil. 3 N. H. Rep. 123, Shattuck vs. Maynard. t And so every person who has a domicil in this state is to be taxed for his poll and his personal property generally, in the place of his domicil. There are certain exceptions, respecting the taxation of some species of property, which are not material in this case.

Cases which involve questions respecting domicil are often those of most difficult solution.

“ Two things must concur to constitute domicil; first, residence ; and, secondly, intention of making it the home of the party •” but “ in many cases actual residence is not indispensable to retain a domicil, after it is once acquired.” Story’s Confl. of Laws 42.

The more correct principle is said to be, that the original domicil is not gone until a new one has been actually acquired. Story's Confl. 47; 5 Ves. R. 787, Somerville vs. Somerville. If there may be a case in which a man has no domicil, this does not seem to be of that character. On the facts before us, the plaintiff had his home or domicil in Hooksett, or Merrimack. There is nothing to show where he resided before he went to Hooksett, and of course nothing to show that on taking up his residence there he retained any domicil elsewhere. He went there under a temporary engagement for a year ; but he may well have contemplated remaining there an indefinite time, having no other home to return to, and haying, so far as appears, no intention, at that time, of removing to any other place. But he left Hooksett in March, 1837, without any intention of returning there ; and he contracted to supply the pulpit in Merrimack for a year, commencing on the first Sabbath in April, and actually went to that place on the first day of April. His personal residence, with his wife, at Bedford, during part of March, and again for a few days in April, being merely temporary, for the purpose of visiting at her father’s, neither gave him a right to vote there, or made him liable to taxation in that town.

Had the plaintiff removed from Hooksett on the first day of April, he would have been taxable there, under the provisions of the act of 1837, even if he acquired a new domicil on that day in Merrimack. But he actually removed before that time. Before that time, also, he had made his engagement to go to Merrimack. On the first of April, 1837, he was personally resident in Merrimack, in pursuance of his engagement to preach there a year. He must be understood to have had the same intention of residing there an indefinite time, that he had of remaining in Hooksett, when he went there ; for he had abandoned his home in Hooksett, with no intention of returning there ; he had taken up his personal residence ⅛ Merrimack, with an intention of pursuing his calling there, for a year at least; he had no home to return to, elsewhere ; and, so far as appears, no intention of going to any particular place at the expiration of that time. We are of opinion that this is sufficient to show that he had a domi-cil in Merrimack on the first of April, and that he was lawfully taxed in that town.

If his residence in Hooksett was regarded as a temporary one, the result would be the same. It was also temporary at Bedford. That is very clear. His personal residence in Merrimack, on the first of April, with the intention of removing his wife there, and residing there, having no home in any other place, and no apparent intention of removing to any other, would be sufficient to constitute him an inhabitant of that place, notwithstanding he had an engagement for a year only, and was not bound to stay longer than that period.

If it might be supposed that he had a legal domicil in Hooksett, for some purposes, until the afternoon of the first of April, when he actually went to Merrimack under his engagement — by reason of a principle, that a domicil once existing is retained until another is acquired — we think he cannot be said to have removed from that place, on that day, within the intention and meaning of the statute of 1827, so as to make him taxable there, under the circumstances of this case. Whether he could have been taxed in Hooksett, upon such a principle, if no other domicil had been shown to have existed on the first of April, we need not enquire.

We have placed no stress upon the fact that he went to Merrimack on the 30th of March. Whether this was in consequence of having made an engagement, or in contemplation of making one, does not appear ; but the fact might be of some importance, if the case was otherwise left in doubt.

Plaintiff nonsuit.