The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-02-28
WEDNESDAY. MARCH rs, 1877.
r. A. WTDElANN RS HIS Err. j. N, KA-
PENA, Minister Of Finance.
Submission of Controversy without action.
In Banco.
Harris, C. j.; Judd and McCully, ]. ].

The submission made in this case is very
| barren of facts, but we will take it into con-
sideration as it is, and give the views which
we have arrived at. The submission reads as
follows:
''The above named parties agree that
| clearly erroneous assessment was made OF
said H. A. Widemanns taxable property in
this Kingdom for the year 1876, and that said
assessment was not made known 10 said ii. A.
Widemann in season for him to appeal as pro-
vided by statute And that the said Minister
of Finance is DESTROYS TO make an equitable
abatement of said assessment, provided he has,
under the law, discretionary power so to do
which is the question respectfully submitted
for the decision of the Honorable Justices of
the Supreme Court, without prejudice to the
legal or equitable rights of II. A. Widemann
in the premises"
The Section 400 of the Civil Code enacts
that the assessors shall be appointed on or be-
fore the LIST day of July, and shall make
faithful assessment of all taxes imposed by
law within their respective districts on or be-
fore the LIST day of September of each year.
| The Section 1875 provides that the assessors
shall return their tax lists to the several Gov
enors on or before the LIST day of September.
The Section 502 provides that the Governor
shall deliver 10 each tax-collector copy of
the tax list for his district. and said tax-col-
lector shall proceed Immediately to collect the
taxes.
The Section 9th of the "Act to amend the
law in relation to the assessment and coliec-
ton of taxes" of 1860, enacts that during the
months of September, October and November
the tax-collectors shall deliver certificates of
appeal to any person disputing the amount of
assessment, and depositing the costs or other
wise as in the said Sections and the succeed
ing Sections provided.
The Section l4th of the act referred to above
provides for a Board of Appeal" and Sec
tion 18th enacts that the :" Board of Appeal
shall sit on the first Monday of December of
each year.
The manner of collecting the taxes is set
forth in the SOB Section OF the Civil Code, and
is as follows: "The said collector shall call
on each taxpayer at his residence, or usual
"place of business, or otherwise give notice
TO the taxpayers to meet him at convenient
"points or settlements of the district in the
months OF September, October and Novem-
der, to demand payment of the taxes
assessed as aforesaid: and if any per
" son shall neglect or refuse to pay his taxes,
" when so called upon or notified, until the
" last day of November, the tax-collector may
"levy the same by distress upon so much of
90 the goods and chattels of such person, as he
may deem sufficient for the payment Of taxes
and expenses of collection, and sell the same
"upon the order of the District Judge or Po-
=" lice Magistrate, after public notice of five
days. In case no property can be found
=" thereon to levy, then such person, if able
bodied, may, by sentence OF said Judge OF
" Magistrate, be compelled to discharge the
" amount of his tax by labor on the public
% roads or other public works, at the rate OF
" twenty-five cents per day"
Thus it is apparent that it is Intended that
tax-collectors shall commence their labors in
the month Of September, and that a citizen has
up to the last day of November in which to
pay his taxes or appeal, and that he may moi
be destrained upon before the last day of No
vember.
Now the submission says that in this case a
clearly erroneous assessment was made, bui
it does not state whether Mr.. Widemann gave
\ in his own list as required by the 492 Section
or not if he did not give in his own list, ther
j., by the 1872 Section he trusted himself to the
discretion of the tax-assessor, and his assess.
ment is binding upon all persons interested.
And again, the submission says that the as.
sessment was not made known to Mr.. Wide
man in season for him to appeal, but the sub
mission does not say whether or not tn,
tax-collector called at his usual residence oil
place of business before the 30th day of No.
rs vember, or gave public notice to meet hin
at some convenient point in the district before
| llt DUN udN Vi NONcLubtI, Is pIONluSu "
the sos Section, so that if the court was asked
% to afford relief themselves. they would no
y! y have sufficient foundation to proceed upon
% But we are not asked to afford relief ourselves
y but we are asked TO adjudicate to whethe
% the Minister Of Finance has the authority t
afford relief, and upon this question we arr
referred to the 5l4 Section of the Civil Code
% which reads as follows: "The Minister o
q Finance, with the consent of the King, shall
% have power, and it is hereby made his dut,
% "to prescribe all needful rules and regula
" tons for the assessment and collection o
:" taxes, in cases where no such rules and re
50 Equations are definitely made by law pro
DO vided, however, that the same shall not b.
in contravention of any existing statute, o
90 " inconsistent with the Constitution"
% And it is suggested that rule somewha
w in this form might be made: That where
taxpayer has made his return in compli
90 "ance with the requirements of law in forn
90 " and manner, unless the same is objected +
" or an approximate assessment made by tn
" assessor and notice thereof given to the per
90 " son thus assessed in ample time to enabl
90 /" him to appeal, then the return of said tax
~ "payer in form and manner made by hir
% " shall be taken as conclusive, and the pro
" ceedings of the tax-assessorb be dsregarded
This statute (Section 5l4) means that tn
90 Minister of Finance may make general rules
% and nothing else, and may make such rule
90 only in cases not provided for by law.
90 But the Legislature has enacted that Cit
90 zen may have up to the 3Oth day of Novembe
to make his appeal and no longer, and ha
90 likewise constituted tribunal to try that ap
~ peal, which tribunal is not the Minister
90 Finance, and therefore the Minister of Financ
% can have no authority to abate taxes, and ca
60 make no rules by which taxes can be abateC
90 Certainly he could make no general rule now
~ which would apply to a case already past.
1t was suggested to us at the hearing Of thi
90 case that every wrong has its remedy, an
90 that it may be that unless this remedy is pre-
. vided by the court in this case there would
ny none.
:, We admit the force of the maxim, but car
not conceive, at present advised, of an
wrong contemplated by this submission
which the citizen asking relief, has not pal
r~ ticipated himself, which this court is not com
petent to remedy, upon proper showing.
CHAs c. HARRIS
= A. FRANCIS JUMP,
LAWRENCE MCCULLY.
JIM. Davidson for plaintiff, Attorney GEM
raj Hartwe1l for defendant