Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-08-24
Ghe polpnesian.
SUPREME COURT.
j. I. WATERHoUsE vs.. WIN. WEBSTER

The opinion of the Court was deli, cred by Chief
Justice Allen
This is action of replevn for certain articles of
property alleged to be taken by defendant who plead
the general issue and also wed the taking, under
and by virtue OF tax list in his hands, Collector of
Taxes for the district of KOna Island of Oahu.
At the trial before the Chief Just ce appeared that
the defendant had commission of Tax Collector and
that the tax roll delivered him for the collection
of taxes therein enumerated and that the plaintiff had
been called upon for the payment of his taxes which he
refused to make Evidence was introduced to show the
esality of the assessment but the Court ruled that
the Collector not answerable for the of any
but himself. 1t conended y the plartf that no
sufficient demand made by the defendant for pay
ment and that the law under which the tax was col
ected published in season have force in this
case and upon these parties. The Court instructed the
jury that a demand was necessary that the law for
the collection of taxes does not tae effect till ten days
after its promulg and if they found that either
was omitted, they must render their verdict for the
plaintiff. The jury rendered verdict for the defend
ant. There were many other points made at the time
by the plaintiff counsel, which were overrued by the
Court, but which will fully appear in the bill of excep
| tions.
1t may be well to examine what the duties of tax
| collector are:
After he has received copy of tax list it is made his
duty to proceed Immediately in the collection.
He must II ON each tax payer, or give notice for the
tax payers to meet him at convenient point. If
any refuses to pay he may Iery any personal
property by distress and sell the upon the order of
the District Judge, or Police Magistrate And if no
property is found then such person, if able bodied,
may be compelled discharge the amount the roads
| or public works.
His bond is for the faithful discharge of these duties
and moIe. And if these his only duties, he
not incur ny obligation for the discharge of any other
duty The Collector cannot be responsible for the
easance of HE Assessor his NAL easLnce that of
| any other officer.
The list is in the nature Of an execution running
against the person nd property of the party, upon
which he has day in Court, 'pportunity TO con-
test it. He seek judicial decision on the
question of his liability than he on an execution.
when the Marshal of the Kingdom sezes the property,
arrests the person. The execution is manda ry in
his hands, and is the tax list in the hands of the Col
lector He has discretion. He must make the levy.
is liable his bond. What then, is the remedy of
the person assessed 1t is pay under protest he
may give notice that he pays by duress, and not vol
unfairly after which he has his remedy The law un
der which the Collector acts obges him TO make the
distraint Such being the case, his duty plain, and
if he discharges il, action be stained against
him. And, in this action, this is the only question,
whether he has done his duty under the LaU Pick,
Preston Boston, IA p; IL Mass, Amesbury
| Manf Co. Amesbury, 46l A Met, Bosteer &
Lund Boston, lS9 and 100; 10. Pick. Sprague
| Us. Bailey. 4i0.
In Mass chusets where the statute this subject
of furnishing list is the the Court have
ruled that where person has not given IN list OF his
estate the assessing OF his property MADE oy the asses
far conclusive that the tax payer precuded
from applying to the authorities for abatement In
all cases where the party has furnished list, appIca
tiOn is made for abatement to the Assessors with
| the right of appeal 10 the County Commissioners
In of neglect to furnish list under their power
of docming estim ting arbitr rly, they do,
in the absence of the list authoritative statement,
which the tax payer is notified to make, they would be
justified in increasing his personal tax, until he should
think fit to give in such statement rs Cushing, Rep
Rot I Eva fhp IS as a
it is Of taxation, for which the plaintiff Is re-
spOnsible, he neglect to furnish the information
within his own power to enable the assessors to make
an accurate list If there is irregularity in the
asses ment it will vacate the tax list given TO the
collector He justified by the list and the remedy
when injury may be against the who are
resp nsble for their own personal fhfulness nd IN
tegrity Greenlelf Huse Meuean et al, 344; lO
Mass. Coleman Anderson, 1861 10 PICK, Little u.s.
! Merrill, 5+3
1t is contended that the verdict is contrary to the
law and evidence given in the case, inasmuch as the
plaintiff made dem ID the defendant for the au-
th"rity by which he aee and that he produced none
1t appeared in evidence that the defendant was reg rded
by the public Tax Collector his appointment ha
| been announced in the PolyHesian newspaper; and
had been furnished with the list and the tra
he produced his commission from the Deputy Gov ern
II appeared further that the defendant went TO the
plaintiffs and said to him, 81 have called to col
lect your txes which he replied that he should not
pay ; that the assessment UNEQUAL and unjust
whereupon the defendant distraned property. 1t was
in evidence that the defendant had previously notified
him to call and pay his taxes and had sent him Dill
of the amount and the occasion of The disraint,
the witness says heard plaintiff ask defendant for his
authority, but he did show it, but sail, his author
ity under the aw and further remarked, we have
discussed that matter before. The Court ruled that 1t
the duty of the Collector show his tax list on
demand, and the question for them to decide whether
he had done Ii is not necessary for Collector to
show list every time he calls for the tax in those
cases where he has made repeated calls They would
also consider whether the Collector had acted fairly and
above board for they would allow liberal construc-
ton 10 his conduct. 1t fully competent for the
jury infer from the evidence that he fully cogn
Zant of the Collectors authority for he was aware
of the of the and there had been repeated
conversations about the tax, and his chief comp amt
that there proper assessment. sh ,ud IN
fer from the evidence that, in his mind there was
proper assessment, therefore there was n proper
authority, and not that the Collector was not duly
commissioned, that he had not the assessment roll
The Collector is ale for his duties only. 1t is true
he must have legal appointment and tax lt, and
give the necessary notice for payment. tie Justhed
by the list, If the Court should be of opinion
that the evidence sufficient warrant the jury
in giving verdict for the defendant; still it is incum
bent upon them consider whether the distrant is not
legal although demand made Of his authority and
refused.
1t cOntended further that the commission of the
Collector signed by substitute of the Governor. II
,as necessary to show h,t the Governor unavoda
bly, abs mt Il the time it executed Il appeared IN
evidence that the Governor absent the island Of
Hawaii.
The article referred in the Constitution is in these
words: I" The Governors in of sictness, or una
voidabe absence in all where Lieutenant Gov
ernor has been appointed have power 10 appoint sub
stituies for whose official acts they responsible
The article designed limit his power of the appoint
ment of substitutes. IL evidently intended that
the Governor should not appont substitute unless for
good reason of sickness absence The Court do MT
regard it necessary in this to prove that the ab-
sence was unavoidable. II any proof necessary,
sufficient has been given to make PriHG faeie case
No rebuttng testimony given.
On charges to impeach the Governor for nal admin
stration of his Office that he had appointed substitute.