The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1877-11-03

DY their legislators, so tnat no species Oh pro-
perty may be . unequally or unduly assessed"
Property, which, by a law bubble, is twice
taxed, is, it is plain, both unequally and unduly
assessed. Yet, legislation may very easily take
a false step, especially in the matter of taxation.
Hence, it has been laid down as an axiom of
state . that a frequent recurrence to the funda-
mental principles of civil government, is abso-
lutely necessary to preserve the blessings of
liberty" Legislation must amend itself. The
people are bound to demand a remedy for
the mistakes of their legislators-there is
nothing perfect under the sun. Sir William
Blackstone, the great exponent of English law,
speaking of the absolute rights of individuals,
says
sin vain would these rights be declared, ascertained aud
protected by the dead letter of the laws if the constitution had
provided no other method to secure their actual enjoyment.
1t has, therefore, established certain other auxiliary subordi-
nate rights of the subject, which serve principally as outworks
or barriers, to protect and maintain inviolate the three great
and primary rights of personal security, personal liberty, and
private property"
In the United States, and in Hawaii nei, the
judicial power exercises a control on legislative
action, and may declare it's enactments u%nconsti-
tutional. and consequently null and void it is
thus the judge of the constitutionality of the
legislative action. In this recent test case here,
our Hawaiian Supreme Court has expressed an
opinion in favor of the constitutionality of our
present taxation enactments. That it is the
province of the highest Judicial authority of the
realm to consider and decide on the constitution
atty Of laws passed by the Legislature, is a well
understood principle. Says Chief Justice Gibson
of Pennsylvania
"Itis idle to say that the authority of each branch of the
government is defined and limited in the Constitution, if there
be not an independent power able and willing to enforce the
limitations. Experience prove that the Constitution is thought
lessly, but habituany, violated; and the sacrifices of individual
rights is too remotely connected with the objects and contests
of the masses to attract their attention. From its very posi-
ton, it is apparent that the conservative power is lodged in the
judiciary, which, in the exercise of its undoubted rights, as
bound TO meet eUery emergency else causes would be deci-
ded by the legislature, but sometimes without hearing or evil
dence."
Learned lawyers have never been remarkable
for unanimity of opinion it might be well for
society if they were. Our Supreme Court has
just decided that mortgages and joint stock
shares are liable to taxation, under our taxation
al enactments, besides the direct taxation on the
property or stock involved. In volume XVI of
the California Law Reports, (page 1917 we find
the following
"a mortgage is not personal property, 4 r + nor liable
as such to taration. Prima Jacie a mortgage is no more
taxable than a deed or any other instrument of title or mere
security,-and the money which it secures cannot be taxed
without a more particular description than the general desig-
nation personal property"
And il volume xLvI of the same California
Law Reports (page 415) the law of mortgage is
laid down in direct opposition to the recent
decision of the Hawaiian Supreme Court as
follows
"Ifa debt for money lent, which is secured by mortgage, is
taxed and the mortgaged property is also taxed, it is double
fOr1fIOn and n violation of The COnstitufion|
Now, if, as our Supreme Court declares, our
present taxational statutes are not 90 unconstitu-
tional, - it may become necessary to contemplate
the expediency of some emendation in the Con-
stitutlon itself, SO as henceforward to make it
decidedly unconstitutional to attempt any legis-
lation which subjects rate-payers to the greatest
possible fiscal injustice-double taxation. On
the subject of the obligations Of members of an
incorporated company, or joint stock share-hold-
ers, volume XIV of the California Law Reports
(page 265) lays down the law of the United
States to be that he (the share-holder) is person
ally liable for his proportion of all claims on the
concern,-which include, of course, taxation
but this is very different from our Hawaiian
legal procedure of taxing him personally for his
own proportion in the Joint Stock Concern, and
at the same time taxing the Joint Stock Concern
itself for its full value. With these comment
and citations, we leave Hawaiian tax PAYERS
themselves to judge whether or not they are
being forced to submit to the universally allowed
fiscal injustice of double tardtion according TO lar.