[G. L. c. 59, §§ 8, 9 section sixty-five. This and the preceding section shall apply to property held for the purposes of the metropolitan water supply, except property situated in Ashland, Boylston, Holden, Hopkinton, Sterling or West Boylston.

The words "revenue in the nature of rent" in section six are not construed so broadly as to justify the taxation of all property held by a city or town in connection with its water supply from the ownership of which it derives pecuniary advantage, and consequently a reservoir used by a city to supply mill owners with water in place of water taken by the city is not subject to taxation under section six.1

Excise Tax on Certain Ships or Vessels

SECTION 8. Individuals or partnerships owning an interest in any ship or vessel which has during the period of its business in the year preceding April first been engaged in interstate or foreign carrying trade shall annually, within thirty days after said date, make a return on oath to the assessors of the town where such individuals reside or where such partnerships are taxable under clause seventh of section eighteen, respectively, setting forth the name of the ship or vessel, their interest therein, and the value of such interest. If the assessors are satisfied of the truth of the return they shall assess an excise tax of one third of one per cent upon such interest; and the person or partnership making such returns shall be exempt from any tax upon said interest other than that assessed under this section.

Whether the tax imposed by this statute is really intended as an excise, or was made assessable in this way, with an exemption of the vessels themselves, for the encouragement of the business, and because the vessels are not within the commonwealth and so not within the constitutional provision requiring proportional taxation, is not clear.1

Place of Assessment of Poll Taxes

SECTION 9. The poll tax shall be assessed upon each person liable thereto in the town of which he is an inhabitant on April first in

1 Miller v. Fitchburg, 180 Mass. 32 (1901).

1 Opinion of the Justices, 195 Mass. 607, 611 (1908).

G. L. c. 59, 10]

each year, except in cases otherwise provided for by law. The poll tax of minors liable to taxation shall be assessed to, and in the place of the residence of, the parents or guardians having control of the persons of such minors; but if a minor has no parent or guardian within the commonwealth, he shall be personally taxed for his poll, as if he were of full age. The poll tax of every other person under guardianship shall be assessed to his guardian in the place where the guardian is taxed for his own poll. In a city each inhabitant liable to assessment shall be assessed in the ward where he dwells; but no tax shall be invalid by reason of a mistake of the assessors in ascertaining the ward where a person should be assessed.

SECTION 10. A person liable to a poll tax, who is in a town on April first, and who, when inquired of by the assessors thereof, refuses to state his legal residence, shall for the purpose of taxation be deemed an inhabitant thereof. If he designates another town as his legal residence, said assessors shall notify the assessors of such other town, who shall thereupon tax him as an inhabitant thereof; but he shall not be exempt from the payment of a tax legally assessed upon him in his legal domicile.

The history of poll taxes in this commonwealth is discussed in another portion of this work;1 in the following pages are set forth rules for determining the place of which a person is an inhabitant within the meaning of section nine and other provisions of the tax law.

RULES FOR DETERMINING DOMICILE

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 and attachments and of his political relations. It embraces the fact of residence in a place with the intent to make it one's home.2

To determine in any given case of what city or town a person is an inhabitant is in most instances easy and simple; but perplexing questions not infrequently arise and have resulted in a mass of litigated cases. The principles of law involved are well settled, but the application of these principles to the facts has sometimes caused trouble.

1 G. L. c. 59, § 1, supra page 186.
2 Lyman v. Fiske, 17 Pick. 231 (1835).

[G. L. c. 59, §§ 9, 10 Inhabitancy, residence and domicile are synonymous terms; and their meaning is the same in fixing the rights and obligations of individuals for the purposes of taxation as for acquiring a settlement, exercising the right to vote, enforcing rights in court and other similar purposes.3 "Domicile" is the term most frequently used to express the meaning intended as "inhabitancy" is cumbersome and "residence" as used colloquially or even sometimes by the courts and the legislature, unless coupled with the word "legal," has a rather broader meaning.

5

Every man must have a domicile; and he can have but one at any given time. His domicile is the place in which he lives with the intent to make it his home, and domicile thus embraces both act and intent. One intends however certain things to which the law gives their necessary legal consequences, and a person who lives in a place for an indefinite period without the intent of returning to his former home acquires a domicile there regardless of his personal sentiments or his desire to retain his legal residence in his old home town. A person cannot have one domicile for the general purposes of life, and another for the purposes of taxation. A person who owns dwelling houses in more than one town and occupies each of them a substantial portion of the year may however as a practical matter elect in which town he shall be taxed, for his own intent in such a case is almost always decisive; and if he forms such intent while actually living in one of the houses he thereby acquires a domicile in the town in which it is situated. Motive, as distinguished from intent, is immaterial. One may change his domicile from

6

3 Lee v. Boston, 2 Gray 484 (1854); Borland v. Boston, 132 Mass. 89 (1882); Stoughton v. Cambridge, 165 Mass. 251 (1896).

4 Abington v. North Bridgewater, 23 Pick. 170 (1839); McDaniel v. King, 5 Cush. 469 (1850); Hallett v. Bassett, 100 Mass. 167 (1868); Borland v. Boston, 132 Mass. 89 (1882).

5 Putnam v. Johnson, 10 Mass. 488 (1913); Harvard College v. Gore, 5 Pick. 370 (1827); Lyman v. Fiske, 17 Pick. 231 (1835); Holmes v. Greene, 7 Gray 299 (1856); Thayer v. Boston, 124 Mass. 132 (1878); Viles v. Waltham, 157 Mass. 542 (1893).

Mead v. Boxborough, 11 Cush. 362 (1853); Kirkland v. Whately, 4 Allen 462 (1862); Whitney v. Sherborn, 12 Allen 111 (1866); Wilbraham v. Ludlow, 99 Mass. 587 (1868); Dickinson v. Brookline, 181 Mass. 195 (1902); Babcock v. Slater, 212 Mass. 434 (1912); Feehan v. Tax Commissioner, 237 Mass. 169 (1921).

7 Thayer v. Boston, 124 Mass. 132 (1878); Gardiner v. Brookline, 181 Mass. 162 (1902); Barron v. Boston, 187 Mass. 168 (1905); Emery v. Emery, 218 Mass. 227 (1914).

G. L. c. 59, §§ 9, 10]

one town to another merely to diminish the amount of his taxes if the act and intent are both present.

A domicile once established remains until a new one is acquired, and consequently one who has abandoned his original home with intent never to return does not lose his domicile until he has acquired a new one by arriving at a different place with the intent to stay there an indefinite period.1o If there is any exception to this rule it is the case of an inhabitant of this commonwealth who has left it intending never to return and is upon the first day of April without the commonwealth in good faith and with reasonable despatch actually upon his way to his new home." Domicile once acquired is presumed to continue and the burden of proof is on him who seeks to establish a change.12

12

Domicile is not lost by absence for a merely temporary purpose with intent to return.13 An intent to return at a remote and indefinite period will not however control an actual dwelling at a different place with all the characteristics of a permanent home and place of abode.14

In some cases domicile may be acquired without physical presence; as in the case of a minor supported by his parents, or of a married woman. The domicile of a married woman follows that of her husband, except in cases where the wife brings suit for divorce founded on the husband's wrong.15 A minor until

8 Draper v. Hatfield, 124 Mass. 53 (1878); McConnell v. Kelley, 138 Mass. 372 (1885); Gardiner v. Brookline, 181 Mass. 162 (1902).

9 Jennison v. Hapgood, 10 Pick. 77 (1830); Abington v. North Bridgewater, 23 Pick. 170 (1839); Kilburn v. Bennett, 3 Met. 199 (1841); Sullivan v. Ashfield, 227 Mass. 24 (1917).

10 Otis v. Boston, 12 Cush. 44 (1853); Buckley v. Williamstown, 3 Gray 493 (1855); Wilson v. Terry, 9 Allen 214 (1864); Adams v. Nantucket, 11 Allen 203 (1865). See however, Carnoe v. Freetown, 9 Gray 357 (1857).

11 Briggs v. Rochester, 16 Gray 337 (1860); Colton v. Longmeadow, 12

Allen 598 (1866); Borland v. Boston, 132 Mass. 89 (1882).

12 Kilburn v, Bennett, 3 Met. 199 (1841); Chicopee v. Whately, 6 Allen 508 (1863); Thayer v. Boston, 124 Mass. 132 (1878); Sullivan v. Ashfield, 227 Mass. 24 (1917).

13 Commonwealth v. Walker, 4 Mass. 556 (1808); Granby v. Amherst, 7 Mass. 1 (1810); Jennison v. Hapgood, 10 Pick. 77 (1830); Sears v. Boston, 1 Met. 250 (1840); Opinion of the Justices, 5 Met. 587 (1843); Cabot v. Boston, 12 Cush. 52 (1853); Lee v. Boston, 2 Gray 484 (1854); Cochrane v. Boston, 4 Allen 177 (1862).

14 Thorndike v. Boston, 1 Met. 242 (1840); Sleeper v. Paige, 15 Gray 349 (1860); Hallett v. Bassett, 100 Mass. 167 (1868).

15 Burtis v. Burtis, 161 Mass. 508 (1894); Stoughton v. Cambridge, 165 Mass. 251 (1896).

[G. L. c. 59, §§ 9, 10 emancipated retains the domicile of his father.16 A man has been in some instances allowed to acquire a domicile by sending his wife to a place he intends to make his home." One who has acquired a domicile and left it for a temporary purpose would not lose it by the departure of his wife without his knowledge or consent.18

A person's obligation to pay taxes is fixed on the first day of April and if he changes his domicile after that date but before the taxes are actually assessed he is none the less assessable in his original domicile.19 If he changes his domicile after an appropriation is voted and expenses incurred by the town in which he resides but before the first day of April he is not liable for any part of the appropriation."

20

A question of domicile not uncommonly requires for its solution an inquiry into the habits, character, pursuits, domestic relations and in general the whole history of the person assessed from his youth to the time of the assessment, and any evidence having a legitimate bearing upon the facts which establish domicile is admissible." Upon the question of intent the person

16 Opinion of the Justices, 5 Met. 587 (1843). When the domicile of a minor under guardianship is at issue the intent of the guardian is to be regarded. Kirkland v Whately, 4 Allen 462 (1862).

17 Williams v. Roxbury, 12 Gray 21 (1858); Bangs v. Brewster, 111 Mass. 382 (1873). So also, when a man is absent from his former home the greater part of the time, but his wife remains, there is evidence that he has not lost his domicile. Feehan v. Tax Commissioner, 237 Mass. 169 (1921).

18 Lee v. Lenox, 15 Gray 496 (1860).

19 Harman v. New Marlborough, 9 Cush. 525 (1852).

20 Dow v. First Parish in Sudbury, 5 Met. 72 (1842); Jackman v. School District in Salisbury, 5 Gray 413 (1855).

21 Evidence that a man had a permanent position in a certain town is admissible, Cole v. Cheshire, 1 Gray 441 (1854). Evidence that the selectmen put a man's name on the voting list without application from him is inadmissible, Fisk v. Chester, 8 Gray 506 (1857). Evidence that a man was in a town only occasionally and for short visits is admissible, Wilson v. Terry, 9 Allen 214 (1864). Evidence that a man endeavored to conceal his residence from the assessors is admissible on the question whether he removed in good faith, Draper v. Hatfield, 124 Mass. 53 (1878). Evidence of the amount of a man's property may be excluded at the discretion of the court, Thayer v. Boston, 124 Mass. 132 (1878). Evidence that a man attended town meetings, took part in discussions there and voted is admissible, but not private discussions of town affairs, Weld v. Boston, 126 Mass. 166 (1879). Evidence that a man declined nomination to the common council on the ground that he had no interest in the affairs of the city is inadmissible, Pickering v. Cambridge, 144 Mass. 244 (1887). Evidence that a man paid a tax in a town in the preceding years is admissible, Babcock v. Slater, 212 Mass. 434 (1912). Evidence that a man voted, paid taxes and was enrolled in the military census in a certain town is material, but not conclusive, Feehan v. Tax Commissioner, 237 Mass. 169 (1921).