Newport v. Unity, 44 A. 704 (1896).
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Newport v. Unity, 44 A. 704 (1896). Book View Copy Cite
Newport
v.
Unity.
Jun 5, 1896.
44 A. 704
Albert S. Wait and Levi W. Barton, for the plaintiffs. In March, 1894, the town of Newport, in its capacity as a public municipal corporation, in view of the public needs and with a sole regard for the public interests, determined to provide itself with a better supply of water than it then possessed. It is plain from the votes then passed that the sole purpose and object were the public interest and welfare. The water is taken from the Gilman pond, situate in the town of Unity, but one of the public waters of the state, in which there is and can be no private ownership. This enterprise, purely public in its purposes and objects, not in the private interests of the inhabitants of Newport, not in the private interests of the inhabitants of Newport in its corporate capacity, but in the general interests of the whole public, as much as are its highways or its schools, is expressly authorized by c. 169, Laws 1895. Is an enterprise of this nature, authorized by the public law of the state, because the public waters of the state are conveyed through a sister town, liable to have the appliances for conveying that water taxed by the latter town? That it was competent to the legislature to have made the grant subject to taxation by Unity, as it may in its discretion subject any other property held for municipal purposes to taxation, we do not deny. The grant was made, however, without any such burden, and no general legislation subjects such property to taxation. The case raises two questions, (1) as to the aqueduct, or main pipe, and (2) as to the acre and a quarter of land. I. Towns are public corporations, existing not by their own volition, or by any choice of their own, or of their inhabitants. They are divisions of the state, formed by the sovereign power for the purposes of public administration, and in order to better provide for the public welfare. 1 Dill. Mun. Cor., ss. 23, 28, 29; Eastman v. Meredith, 36 N.H. 284 ; Hill v. Boston, 122 Mass. 344 . If in any case special powers are conferred upon towns or upon any one town, it is, or should be, always in the public interest. No legislation conferring special powers upon towns with a view to provide for or further private interests can be legitimate. The presumption must therefore be, that in granting or conferring powers upon towns, whether by legislation of general application or by special acts, the legislature has the public interest and the public welfare alone in view. In the exercise of these powers towns are but performing a public duty, one which they have not voluntarily assumed, and cannot neglect without being derelict in duty. In performing the duties thus prescribed to them, towns are obliged to incur large expenses, for which their inhabitants are compelled to submit to taxation. In the case at bar, all the inhabitants of Newport are taxed to pay the expenses of this enterprise; individuals taking and paying tolls for the water are again taxed to the amount of the tolls for the expenses of the same enterprise. If the town in its corporate capacity is taxed in Unity upon the aqueduct, that is another tax upon the same subject-matter, a method of dealing with an enterprise of public beneficence sufficiently penal, we should think, to discourage similar enterprises elsewhere, if not to prove fatal to the one with which we are now dealing. We do not by any means lose sight of the case of Lake Co. v. Gilford, 64 N.H. 337 , nor do we question in the least the justness of the doctrine of that case. That was a purely private undertaking, commenced and prosecuted exclusively for the purposes of private gain, and the tax was upon the private individual ownership in a reservoir of water, neither of which circumstances is an element in the case at bar. In this case the town of Newport owns no reservoir; it has a mere license, revokable at any time by the state, to draw water from one of the public fountains. It is not, in this case, a reservoir that is taxed, but in addition to the acre and a quarter of land, the aqueduct or pipe by means of which the water is utilized, neither of which was true in Lake Co. v. Gilford. Among the authorities in support of the proposition, as a general rule, that a public corporation is not taxable for property it holds for public purposes, are the following: Worcester County v. Worcester, 116 Mass. 193 ; People v. Salomon, 51 Ill. 37 ; Directors v. Manheim, 49. Pa. St. 21; Wharf Co. v. Galveston, 63 Tex. 14 ; People v. Doe, 36 Cal. 220 ; Louisville v. Commonwealth, 1 Duv. (Ky.) 295. \It is always to be assumed that the general language of statutes is made use of with reference to taxable subjects
Wallace.
as it seems to us  |  and the property of municipalities is not in any proper sense taxable.\" Cool. Tax. 131. State v. Gaffney
Wallace, J.

The question for decision is whether that portion of the water-works owned by the town of Newport within the limits of the town of Unity is subject to taxation in the latter town. The act (Law's 1895, c. 169) which authorized the tourn of New'port to construct the water-w'orks contains no provisions in regard to their taxation. By s. 3, c. 55, P. S., “ Buildings, mills, carding machines, factory buildings and machinery, wharves, ferries, toll-bridges, locks and canals, and aqueducts, any portion of the water of which is sold or rented for pay, are taxable as real estate.” This section of the statute in express terms subjects to taxation as real estate “ aqueducts any portion of the water of wliich is sold or rented for pay.” The towm of Newrport charges “ those of its inhabitants vdio use the water reasonable tolls for the water used by them respectively.” According to the plain terms of the statute, its water-works are taxable as real estate, unless they are excepted as “real estate of the . . . town used for public purposes.” P. S., e. 55, s. 2. This last section in express terms exempts from taxation real estate of the towm used for public purposes. Conceding that the w7ater-works of the town of Newport are used for public purposes, they are exempt from taxation by this statute, if this exception applies to property of a towm outside its geographical limits. But the exemption extends only to real estate within the town, which is owned by it and used for public purposes.

[*592] Prior to 1867, there was no provision of the statutes exempting the real estate of towns from taxation. In the revision, of 1867 was introduced for the first time the material provision in regard to the exemption of town property from taxation. “ Peal estate ... is liable to be taxed except . . . property of the state, county, or town.” G. S., c. 49, s. 2. This provision remains substantially the same. G. L., c. 53, s. 2; P. S., c. 55, s. 2. In 1867, towns had no general authority to purchase real estate outside their limits. G. S., c. 34, ss. 3, 4, 9. They might acquire land outside their limits as a gift or by levy in the collection of a debt, but the/ were not then authorized to buy land outside their limits, or even to acquire it by eminent domain. Subsequently, numerous towns and cities have been authorized to establish water-works by acts broad enough to authorize them to take and condemn land outside their limits. If there were at the time of the revision of 1867 no statutes authorizing towns to purchase real estate outside their limits, it seems plain that the statute is not necessarily to be construed as exempting such property from taxation. The legislature could not have had it in mind. Hence, when they subsequently authorized towns and cities to acquire for public purposes lands in other towns, it cannot be justly presumed that they intended such property to be exempted from taxation.

The purpose of this statute of exemption was to avoid the assessment and collection of a tax upon the property of a town used for public purposes by the people of the town, as on a pound or town house, for the reason that it would be a useless and unnecessary expense and trouble. But to interpret this statute so> as to exempt the property of a town used for public purposes, which is situate in another town, is to extend the exemption beyond the reason and purpose of the statute. To thus interpret it, would be to give it a meaning which would make its operation unequal and not in accord with the spirit of our taxation laws, which are based upon the just and equal distribution of the burden of public taxes. It is not to be presumed that it was the intention of the legislature to accomplish so unjust a result as to deprive one town of its taxable property for the benefit of another, or that one town should be deprived of its right to tax property within its limits which was used for public purposes, in which it or its people had no interest and from which they derived no benefit, and which were beneficial alone to some other town and its people. This doctrine carried to its legitimate conclusion might practically bankrupt some of our smaller towns by depriving them of a very large portion of their territory upon which to exercise the power of taxation; as, for example, suppose the late Austin Corbin had given to the town of Newport his park, situate outside the limits of that town and embracing a large por [*593] tion of the area of several adjoining towns. It would require express terms to warrant a holding that one town can invade another and, by taking a portion of the territory for their own benefit, whether the purpose be in a legal sense public or private, subject the remaining lands of such town to a heavier burden of taxation. There is no competent evidence that this was the intent of the legislature, but, on the contrary, the evidence leads to the conclusion that it was their intention to limit the exemption to property of the town used for public purposes and situate within its limits.

In reaching this conclusion, the cases cited from other jurisdictions, as Wayland v. Commissioners, 4 Gray 500, West Hartford v. Commissioners, 44 Conn. 360, Rochester v. Rush, 80 N. Y. 302, and other cases, have not been overlooked. Some of these decisions are based upon special statutes not applicable here, and some of them hold this kind of property exempt from taxation because it is used for public purposes. But this decision does not necessarily conflict with those, for the reason that it depends upon the special provision of our statute.

Petition dismissed.

All concurred.