The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1877-10-27
Of N. unItod states permitting

are CnaTGedDc aCCOf0inB 70 n hhhcnhhthhi NV. R.Hb
claim Of inIury sustained 10 which the defendant should res
pond in damages, and the result q a finding ir the Pisintin'
sessment. But taking this into consideration and The fnrthei
view that the term " civil action includes legal and equlta
BILE proceedings, so that the Judgment Of the Court might hay,
the effect Of mandamus or injunction, we are not PrepaIeu =
before the Court. IL might become a precedent, for using TINS
method Of Litigation 20 obtain s me naoi aGsc 7 - ,b St paT.
Ties might hereafter suffer damage, and lead TO making me
But one Of the parties in these caser Is the Government, In
the name Of the Assessor, for whom the Attorney SensGS' nv,
the Government may require The opinion o. ,e 0Sa,' .P y
the Attorney General. that II we felt unable 70 take jurisdiction
Of these submissions the Cabinet would a no. 2 , y oepsIo'1vpp
We aT. consider Ssss ses i s%9 IsS ss.sss:S sR ~sIas the amount %S,Ss' off,
mortgage thereon, and whether the mortgage shall be assessed
~ The IanSuase Of The statute that real estate IL to be as
sessed in the district where situated irrespective Of any mort
other possible construction Of the law than the obvious one
The sIS, 9, shs a. 60 E PsIi0 0os .u R5eett 10 specific ta1ss o. Especial.
~ exempted from taxation, shall be " taxed, and that me tsrm
money, notes Of hand and every species Of property not
Included in real estate" The amendment Of 1870 struck 90,
inserted in their place I" notes Of hand, unsecured debt, grow
. ~ " q should %S be assessed It's fml cash value irrespective Of
any mortgage From this some argument was offered INA.
taxation and transfer the tax 10 real estate; TO concede ms
species Of property not Included 10 real estate, and not special
l exempt or subject to specific tax 10 70 be taxed as ,peIsona'
all. The latter view Is maintained by some speculative WIN,
IA but. without discussion OF the thcOfys we say nat We hplu
a secured solvent debt TO be propertyi aud u property Il In
cuded in the description Of personal property, and to beas-
sion TO exclude it than anything we find In the statute. IL would
rather appear TO US that in striking out the phrase /" moneys 10
Items " all moneys and notes Of hand" u was intended toln.
by mortssge, in like manner with money either in hand or
loaned, with or without note, and whether secured by mort
IN respect to the third point, that the holder Of stock in an
thai lie plantation property real AID personal were fuliy as.
sessed in the district where situated and Tor the purpose Of
a.. ruuna ua rnav tai n A ha A "A MSiafka I'm ooruora.
,ions" are : to be taxed as esng sc Re I. q !. pr y by y
its land, building, machinery, cattle, horses and implements
are TO be taxed In the district where situated.
taxable by the terms Of the statute, as was mainly conceded
The constitutional provision which is claimed TO be lnfinged
by the law, Is a part Of the l4th Article F" Each member OF
enjoyment Of lie, liberty and property. aud therefore shall be
Obliged 70 contribute his proportional share 20 the expense Of
tional or double taxation, and that the operation Of the law IL
70 impose double taxes BY taxing mortgages aud The real eS-
tate, stock and the plantation. When tits claimed that the
plaintiff, who holds the mortgage, has charged the borrower a
pay for her mortgage, and that 50 The ~mOrtgagor pays a tax once
on that part Of his property which IL involved In the mortgage,
and again in the shape Of enhanced Interest, we fall 20 see
that he has paid a double tax. The Consultation does
which may fall upon him through The operation Of the laws Of
me me ~ :. nsnsrsi az q n her money cannat uhssa ~ Ppss2Sa
suffers an Unconstitutional wrong from the fact that the other
pay The lenders taxes IN the higher rate Of Interest demanded
Is an inference only. II does not appear that II mortgage
lower by the amount Of the tax. This circumstance inter diio
might be cOnBlderedy Dut tho oOntrOlinR circumstances SIRE,
supply and demand, the market value Of the security and the
character and necessities Of the borrower. The rate OF inter
est 10 this kingdom has fallen from 10 per cent. 10 o, during
the years the tax has risen from nothing up 10 I Of one per
1t is to be remarked that the expression in our constitution
is, not that all property shall be taxed equally, as is the pro-
thorides we are cited but in substance this, that in considera-
tiOn Of the protection accorded to lie, liberty and property,
Of Government. Now II a mortgage IL property, and III II IL
consultation that the holder Of IL should pay taxes on IL at tho
common rate Of assessment. -
will exercise the high power Of declaring a statute unconsutu-
uonai and 50 set aside ,t .se will viii o. T. me e ,Sprs%s :, ISw.%ssins
tlon Of FUNDAMENTAL law. The New York O Jurt Of Appeals,
IsTf HGhbert Elevated Il. r. Company" use this language
with regard to constitutlonal construction Every preSump-
ture. An adverse doubtful construction is not sumclsni TO
departure from the provisions Of the fundamental law lhaI
Courts will declare acts Of the Legislature invalid. 60 n. Y.
It will not be sufficient TO show that the operation Of the tax on
moTtg % /. " e q csS Sn, ne ~, hs . ~ 70 mortgages. such
clearly prohibited under the Constitution, must be endured
lis not the owner Of the estate, having only the equity Of re.
n demptlon. This his legal status, IL not what an assessment
lrsmsins In possession and treats II as his own in every respect
4 S so snI a aSH hss i na%IsIi s 81 are sRr 20 ihs lender ss 2 % assa IL Of e, Sreas 20,
Of failure 70 pay, ih si certain pisos Of property shall be SOFA Al
creditors. me mortgage may purchase 7, bat only by being
the conveyance included In the mortgage. For the purpose
then OF the assessment and tax laws, a mortgage IL trented
as a note which is secured, equally liable 70 taxation with
notes unsecured, and real estate is treated without reference 10
the credit obtained upon H. The owner Of the money and the
assessment on his property in this kingdom.
diicuiiy that there iS an inequality between the .as Im ny.
posed on Incorporated and nonInoorporAted property Of Che
in that and also in the several shares which represent sa ass
s toP be o oSseE sSG he re- t lSnt the . lave az T IS tna RESPECT 70 es G s,sDsS Il Is
The same words as It has since 1859. when a property taE was
item. We believe that every incorporation existing In the
kingdom has been made since then and 10 view o. 'hls proyi.
have voluntarily placed their property in This form. The fact
a presumption IN favor Of its constIiutOnaIty, besides he gen.
erSl presumption that way IN favor o. statutes
the creation Of new taxable property. In the case OF a planta-
land, The buildings, machinery, cattle and Implemonts "a ratsd
by the Assessor Of the district, will not represent The property
Of established plantations has now q value a. an Investment
greatly Tsnas 10 essess OF me value Of Che several Items forming the
stock is estimated In view o. the fact that the plantation laS Il
a new statute provision for dodueting from the ysius o. ss
directly 70 Incorporation. We have been cited 20 The y mssss
the case stands, can il be said that the holder tS%. Of a sh SS. a. ot
stock which Is valued at $4,000 in the market, because amer
yields q pet profit On such valuation, should not psy Dc sov.
e eTn2S 'Ss IL RS~ Ts !. sS shy Ih e ss:1 hs b ssT morn on , s"od P. .aE% be
to tax the stock, when the plantation is also taxed than 70 taK
direct The Assessor 10 his election whether he shall hold ths
Sns, o. Z, the other likewise iss = IN morigasss' whether be shall de
shan omit to assess The mortgage. This seems 10 US 10 hs
beyond the province OF the Court.
The subjects involved in the three questions submitted have
given rise 70 profound legal discussions and judicial opinions.
without a final and uniform settlement Of the dimcuities Ia
volved, and that toe where the statutes Of aasesalneBt aud con
stitutional provisions have been much more foil and explicit
than our own. There are two systems Of taxation, either one
Of which may be adopted az the theory oil Consistent series of
statutes. One by Of taxation IN rem, where every
species Of visible property IL taxed In fun, and no other. I'm.
der this, debts Of every Kind, whether, presented BY notes,
mortgages OF accounts, and all Intangible property, such AZ
stock. are not assessed. The other Isthe system 81 TAXATION
an persenqm, wherein every person 10 taxed for all the
property he owns, biS visible and real personal estate, less his
debts thereon, his notes, mortgages and stock.
We do not understand that our statute IL consftent with
either system.
The Court cannot undertake In this proceeding 10 remedy or
relieve te apparent Injustice which tax payers may suner by
the statutes on TAXATION. The legislature n he trIbunal ID
which such grievances must be addreEeed. We do MOI and ~
statutes 70 be unconstitutional
Judgment for the defendant.
Attorney General Hartwcu Cor the defendant.
Messrs. Davidson, Castle and PTeston Tor pIalntlas.
Honolulu, October 23d, 1877.
A TELEGRAM states that the Genhons. Tho Man