Palfrey v. City of Boston, 101 Mass. 329 (Mass.)

Wells, J.

The plaintiff is not personally subject to taxation in Boston. If he can be taxed there at all, it is only by virtue of the special authority derived from the first clause of the Gen. Sts. c. 11, § 12. The tax, in such case, is laid upon property; which is regarded as having its location where the business, to which it is incident, is carried on, and where the owner hires or occupies a manufactory, store, shop or wharf.

It might be questioned whether an office, occupied for the sale of internal revenue stamps, comes within the provisions of the statute. Huckins v. Boston, 4 Cush. 543. But the plaintiff does not take this point. He relies entirely upon the ground that he is a quasi officer of the government of the United States; that his business is in a measure a service rendered to that govern ment; that the tax is a burden imposed upon that business, and thus, to that extent, an obstruction to that service.

There are two conclusive answers to this position. One is, that the plaintiff does not hold such relations to the general government, either personally or in respect to his business, as to entitle him to the exemption he claims. The case of Melcher v. Boston, 9 Met. 73, is decisive of this question. The other is, that the tax is not laid upon the plaintiff, either personally or in respect to his business. It is not governed by the amount of

business he may transact. It does not depend at all upon the fact whether he may make many or few sales, or none at all. The tax is upon the property in his possession and ownership, held for the purposes of business at the place where the tax is laid.

The property, which constituted the stock in trade of the plaintiff, and upon which the tax was imposed, consisted entirely of internal revenue stamps. These are instruments of the general government for the performance of its legitimate functions. They themselves represent the tax which that government levies upon the business of the community, for its own support. They are the drafts by which that tax is received in advance, and the vouchers by which its payment is made manifest. It is their capacity to answer these purposes which gives them value as property. They have no value otherwise. We think it clear therefore that, as property, they are exempt from all state and local taxation.

The defendants’ counsel argues that, as the tax is upon “ stock in trade,” the revenue stamps are not thereby subjected to any tax directly. But we do not understand that “ stock in trade ” constitutes a separate subject of taxation, independent of the personal property in which it consists. The subjects of taxation are enumerated in §§ 3, 4, of the same chapter of the statutes, and § 12 relates only to the place where property so enumerated shall be held liable to taxation. The term “ stock in trade ” is used for convenience of description, and not as, in itself, a distinct subject of taxation. It differs essentially from the term “ capital stock” when applied to corporate bodies. The decisions in regard to taxes upon corporate capital stock do not apply to this case.

The tax in this case, being laid wholly upon property exempt from such taxation, is illegal and void ; and the plaintiff is en titled to recover it back. Judgment for the plaintiff.