The petitioner, a resident of Bangor, Me., asks for an abatement of the taxes assessed by the defendant town in April, 1880, and in April, 1881, upon a lot of logs therein, of the value of some $6,000, which had been cut and drawn there during the preceding winters from Wentworth's Location in this state, and which were owned by himself and other non-residents. It is alleged in the petition and admitted to be true, that at the time the assessments were made the "logs were being taken by the *Page 312 owners on the way to Maine, to be manufactured and sold;" and the claim of the petitioner is, that they were not subject to taxation in Errol "for the reason that they were in transit to market from one state to another, and also because they had all been in other ways taxed." No facts appear tending to support the last reason, and hence it requires no consideration.
The assessments were made under s. 13, c. 54, Gen. Laws, which provides that wood, bark, timber, logs, and lumber, manufactured or other, exceeding fifty dollars in value, shall be taxed at its full value in the town where it is on the first day of April. The meaning of this provision is not controverted, and the objections to its constitutionality are readily answered by the application of well settled principles to the facts set forth in the petition.
The consideration upon which taxation is based is the protection of the government to rights of persons or to rights in property, and taxes may consequently be imposed when either person or property is within the jurisdiction. Cool. Tax. 14. But taxation and protection being reciprocal, it follows that a personal tax can only be assessed on residents, — and for this reason, as well as the additional one, that by a fiction of the law personal property is supposed to accompany the owner, and for many purposes is deemed to have no situs except that of his domicile. Such property cannot be taxed unless it has an actual situs within the state where the tax is assessed, and hence is not taxable in a state through which it is merely passing. Subject to this qualification, "it is competent for any state to provide that tangible personal property situate within it may be taxed there irrespective of the residence of the owner." Cool Tax. 43, and authorities cited, among which are Green v. Van Buskirk, 7 Wall. 139, 150; Company v. Blackstone, 13 Gray 488; Leonard v. New Bedford, 16 Gray 292; Hartland v. Church, 47 Me. 169; Desmond v. Machias Port, 48 Me. 478; Catlin v. Hull, 21 Vt. 152; Mills v. Thornton, 26 Ill. 300; St. Louis v. Ferry Co., 40 Mo. 580; Rieman v. Shepard, 27 Ind. 288; Steere v. Walling,7 R. I. 317; Hoyt v. Com'rs, 23 N.Y. 224; People v. Ogdensburgh, 48 N.Y. 390; Hood's Estate, 21 Pa. St. 106, 114; Maltby v. Railroad Co., 52 Pa. St. 140; State v. Falkinburge, 15 N. J. Law 320.
The only inquiry upon this branch of the case then is, whether the petitioner's logs had an actual situs in this state when the taxes imposed upon them were assessed. But one answer is possible. The trees from which the logs were cut obviously had an actual situs in Wentworth's Location, and rightfully constituted a portion of the taxable property of the state. It is equally obvious that after they were severed from the soil and became logs they were just as much under the protection of the state as before, and consequently just as much a part of its property for purposes of taxation, and that this reciprocal right of protection and taxation would cease to exist only when the logs passed into the territory and jurisdiction of another state. *Page 313
But it is urged that inasmuch as the logs were in transit and seeking a market in another state, the tax imposed was one upon commerce, and therefore in conflict with the federal constitution. This contention is groundless. At most, the statute under which the assessment was made simply acts upon and affects property which may be the subject of commerce. But a tax on property that may be the subject of commerce under congressional regulation is not a tax on commerce, but on property (Scott v. Willson,3 N.H. 321, 326, Cool. Tax. 62); neither is a tax on property that has been the subject of such commerce, where it is taxed only as property, and in common with all other property within the state. Brown v. Maryland, 12 Wheat. 419; Purvear v. Commonwealth, 5 Wall. 475, 479; Waring v. The Mayor, 8 Wall. 110.
The conclusion then is, that the logs in question, having at the time of their taxation an actual and legal situs in this state, and having been taxed only as property and in common with all other property under a law making no discrimination in respect of ownership, no case is made for relief.
The petitioner also asks for an abatement of the taxes, assessed by the defendants in 1880 and 1881, upon a lot of logs owned by himself and one Pingree, another non-resident, which had been cut in Maine and driven through the Rangeley lakes and rivers into the Androscoggin river in this state, and, while on their way to mills owned by Pingree and himself in Lewiston, Me., had, on account of low water, been left in Errol in the summers of 1879 and 1880. The petition also sets forth that the Androscoggin river then was, and had been for more than twenty years, a public highway for the floating of timber and logs from the lakes and rivers in Maine down that river to Lewiston, and had been so used by the petitioner and his associates for more than twenty years last past.
The facts thus stated clearly show that these logs were brought into this state in the usual course of transportation, and remained here no longer than was necessary under the circumstances. In short, they were merely passing through the state, and therefore were not taxable in this jurisdiction. Conn. Riv. Lumber Co. v. Columbia, ante, 286.
The result is, that the petitioner is entitled to an abatement of the taxes assessed on the logs cut in Maine only.
Case discharged.
DOE, C. J., did not sit: the others concurred.