Sears v. City of Boston

| Mass. | Mar 15, 1840

Shaw, C. J.

This action is brought to recover a sum of money paid, under a compulsory process, as a tax upon the noil and personal property of the plaintiff, for the year 1837, whilst he was in fact residing in Paris. The question is, upon the facts agreed, whether he was an inhabitant liable to taxation. By the provisions of the Rev. Sts. c. 2, § 6, clause 7th, the word inhabitant, as used in the statutes, may be construed to mean a resident in any city or town.

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. Where an old resident and inhabitant, having a domicil from his birth in a particular place, goes to another place or country, the great question whether he has changed his domicil, or whether he has ceased to be an inhabitant of one place and become an inhabitant of another, will depend mainly upon the question, to be determined from all the circumstances, whether the new residence is temporary or permanent ; whether it is occasional, for the purpose of a visit, or of accomplishing a temporary object; or whether it is■ for the purpose of continued residence and abode, until some new resolution be taken to remove. If the departure from one’s fixed and settled abode is for a purpose in its nature temporary, whether it be business or pleasure, accompanied with an intent of returning and resuming the former place of abode as soon as such purpose is accomplished ; in general, such a person continues to be an inhabitant at such place of abode, for all purposes of enjoying civil and political privileges, and of being subject to civil duties.

Taking the facts as submitted to the court, in the present case, we are all of opinion that they indicate a casual and temporary departure of the plaintiff from his place of permanent abode, and tha-t he still continued to be an inhabitant of Boston, liable to be taxed for his poll and personal property. Most of the circumstances point to Boston as the fixed place of his abode, and to Paris as a place of temporary residence. Here he was born and educated, and acquired his property. Here was his dwellinghouse ; and though leased during his absence, it was with the furniture, and for a very short term, so that his family establishment could be resumed on his return. But the very strong circumstance which characterizes this case is, that at the time of the plaintiff’s departure, it was his intention to resume his residence in Boston. It indicates that Paris was a place of temporary and not of permanent abode, and that he did not relinquish his domicil, or cease to be an inhabitant of Boston. Had he returned to Boston a few days before a town meeting or an election, we think he would have had a right to attend and vote as an inhabitant, in the same manner as if he had not been absent. He would have been in the same situation, in this respect, as a soldier, or mariner, or other person temporarily absent from his home, for purposes of business or pleasure.

The circumstance of the plaintiff’s taking a house in Paris for 01 e year — it not appearing he engaged, or that it was his intention to engage, in any business or occupation abroad — is not sufficient to control the other circumstances tending to show that Paris was a place of a temporary visit, and not of a permanent residence ; that he was there as a sojourner, and not as an inhabitant.

Each case of this description depends so much upon its own circumstances, that it is difficult to find authorities for any thing more than a few general positions, which are plain and well un derstood. We think this case is distinguishable from that of Thorndike v. City of Boston (ante, 242), in this, that in that case, at the time of the departure of the plaintiff from Boston, it was his declared intention not to return and resume his residence This was strengthened by proof of preferences previously and frequently declared in favor of a foreign permanent residence and abode, and by a declared purpose, after taking up a residence at Edinburgh, not to return to Boston. In the present case, there was, at the time of the departure of the plaintiff from Boston, an intention to return and resume his residence in Boston, though at no fixed period, accompanied with circumstances indicating a temporary and not a permanent residence in Paris. The court are therefore of opinion that the plaintiff continued to be an inhabitant of Boston, liable by law to taxation, and that he is not entitled to recover back the money paid as a tax upon bis person and personal property.

Plaintiff nonsuit.