Secs. 1, 11, and 17, Gen. Stats., ch. 50, read as follows:
"1. Every person shall be taxed in the town in which he is an inhabitant or resident on the first day of April, for his poll and estate, except in cases otherwise provided by law."
"11. Real and personal property shall be taxed to the person claiming the same, or to the person who is in the possession and actual occupancy thereof; if such person will consent to be taxed for the same; but such real estate shall be taxed in the town in which it is situate."
"17. If no person is in possession or occupation of any building deemed by the selectmen to be tenantable, or of any other real estate, improved as pasture, mowing, or arable, or otherwise, the same shall be taxed as non-resident by such description as it may be readily known by, with the name of the owner, if known."
The first section seems to be the key to the construction of this statute. It is the fundamental rule, and must control unless otherwise declared.
This being so, it would seem that sections 11 and 17 must be read as if the words "inhabitant of the town" were put in the place of "person." It would have been all unnecessary repetition, interfering with the much desired brevity of expression, and in no respect altering the sense. Read in this way, as I think they must be, sections 11 and 17 are entirely consistent and intelligible. *Page 391
By these sections, read in this way, land situated in any town would be taxed to the inhabitant claiming it, but it must be taxed in the town where it was situate; and so, if the claimant were not an inhabitant, it must be taxed to the occupant, if he would consent. Probably the contingency was not thought of, of a person not an inhabitant being in any sense the occupant.
By section 17, read in this way, if no inhabitant to whom the land could be taxed were in the possession or occupancy, it must be taxed as non-resident by its description.
By Gen. Stats., ch. 54, sec. 1, collectors have, in the collection of. taxes, the same power as constables in the service of civil process. If the law be as I take it to be, that constables' power to serve civil process does not extend beyond their towns; and if the only cases in which the collector's power is extended are where a person has removed from town, or personal property has been taxed to a non-resident, it would follow, that if this real estate could be taxed directly to a person not an inhabitant, the collector could not go out of the town to collect the tax, but would be obliged to resort to a sale of the real estate, as in the case of a non-resident tax.
It is most likely that if the legislature had intended to authorize the taxation of real estate directly to a non-resident, power would have been given to a collector, as in the case of personal property so taxed to distrain or arrest beyond the limits of his own town.
The three sections first quoted have been placed in juxtaposition for the purpose of making clear their connection. It will, I think, be found on examination that none of the intervening sections are such as to have any effect on this construction.
The cases of Dewey v. Stratford, 42 N.H. 286, and Cocheco Manf. Co. v. Strafford, 51 N.H. 471, seem to me fully to confirm this construction of the statute. I am therefore of opinion that the tax in question was unlawful.
SMITH, J.
So much of the plaintiff's farm as was situate in Lyman was taxed to him as resident, although he was not an inhabitant of Lyman and did not consent to be taxed for the same. I find no provision of the statute that authorized this to be done.
When the owner is an inhabitant of the town where the land is situate, it must be taxed to him in such town. Gen. Stats., ch. 50, sec. 1.
Under section 11 it must be taxed in the town in which it is situate to the person claiming the same, or to the person who is in possession and actual occupancy thereof, if such person will consent to be taxed for the same.
Under section 16, in case a person not the owner is living upon the land and refuses to be taxed for it, it must be taxed as resident by the number of the lot, or such other description as it is commonly known by, with the name of the occupant as such.
Under section 17, if no person is in possession or occupation of improved land, it must be taxed as non-resident by such description as it may readily be known by, with the name of the owner if known. *Page 392
The plaintiff could not be taxed for this land under section 1, because he was not an inhabitant of Lyman. Under section 11 it might have been taxed to him as non-resident, or as resident, with his consent. Under section 16 he could not have been taxed for it, because there was no person other than the owner then living upon it; nor under section 17, because the land was not then unoccupied.
When the selectmen do not know who the owner is of any piece of land, they may tax it as non-resident. Nelson v. Pierce, 6 N.H. 194. Under the statute of July 7, 1827 (Laws of 1830, p. 556, sec. 10), lands in possession of an occupant could not be taxed as non-resident — Brewster v. Hough, 10 N.H. 138; but that statute provided that real estate should "be taxed to the person claiming the same, or to the person in the possession or actual occupancy thereof," omitting the words "if such person will consent to be taxed for the same," found in Gen. Stats., ch. 50, sec. 11.
Upon the case as stated I think the plaintiff ought to recover.
Case discharged.