The Hawaiian gazette., 1882-06-28

bd01c hcChtfyi J.i nun jury Ndrea
S. I. ALEXANDER AND H. P BALDWIN vs. ABRA-
HAN FoKSANDER, Tax COLLECTOR, ETC.
The plaintiffs claim herein from the Tax Col
lectOr of Maui SSl6.O5 paid under protest on
S42, l40, assessment illegally falsely and dOubly
assessed.
Excess Of assessment is claimed on two items.
lst. Because a certain acreage Of Kuld or dry
and pasture land has been appraised at SO per
acre, whereas it is not worth more than IS so
| per acre, at which value it was returned
2nd. Because an area Of land on which sugar
cane is grown by the aid Of water from " The
Haiku Ditch" owned by Ditch Company Of
which plaintiffs arc members, is taxed upon the
footing Of land to which water is appurtenant,
while the Ditch is separately assessed and taxed,
50 that there is said to be double taxation 1t is
first 70 be considered if the Court has jurisdiction
in these items or either Of them.
10 Castle We. Luce ~, Hawaiian Reports the
Court entertained the case of a complaint that
the plaintiffs being shareholders in the Haiku
plantation were taxed on the market value of the
shares while the plantation and it's material had
paId taxes soidO upon all the value represented
by the stOck.-The Court say " for any defect OF
irregularity in assessing the taxes, or excess in
valuation, the party must appeal to the Appeal
Board"
This was claimed by counsel to be oJitcr dictupn.
1t is stated without reasoning or citation Of au-
thOrities. But without considering il O5ileT the
matter may be DOW examined. In Bovine We.
City Of Boston, it is held BigeloW j. that the
principle is now well settled by the authorities
that the sole remedy for an over taxatiou-caused
by an excessive valuation Of property or by IN
GLIDING in the assessment property Of which the
person not the owner or for which be s not liza
bic to taxation is by an application to the Asses
sor for an abatement, and there is no remedy by
an action at law. This agrees with Howe We.
Boston, Cush. 2T3, Lincoln We. Worcester
Cush. So.
Judge Cooley p. 52S Of Cooley on Taxation
states the law to be that for merely excessive or
unequal assessment where no principle of law is
violated in making it, and the complaint is of an
error Of Judgment only the sole remedy is an ap-
picatlon for an abatement, either . ,tbc AssGs.
sors or to such statutory bOgFii as has been pro-
vided for hearing it.
Ipon eSegs5iiggs.iahc Massachusetts Statute |
VA 30 express provision that there shall be no
other remedy, and in this respect our own is the
same-SectiOn 3 Of the Act Of 1860, constituting
Tax Appeal Boards provides that the Tax Col.
lector may grant any person disputing the amount
Of his assessment a certificate Of appeal to the
Tax Appeal Board Of the district. There is no
express provision for application to the Assessor
TO abate, but as the determination of the value is
a matter Of the Assessors Judgment any consid-
crations affecting 1t may be urged on the Asses
sor before he has closed bis roll There is then
an appeal to board Of three other persons, who
beng Of the same district the Police or District
Judge being one, and two who are appointed as
knowing the values Of property, determine if
there has been an oyer-valuation
Il is conceded by plaintiffs counsel that there
can be no appeal from this board to the Supreme
Court, but it Is claimed that the provision that
the Supreme Court shall have jurisdiction Of all
cases 10 law or equity whether the same be
brought before it by original writ by appeal or
otherwise, Civil Code Section $40 and const Act
81, permits the plaintiffs to bring any contIo-
yersy with Tax Assessor and Collector as an
action Of law before the Supreme Court. But by
the same reasoning an appeal could be taken to
this Court from the Tax Appeal Board, there be-
ing no exclusive words in the Statute, which, cor
rectly, the counsel admits cannot be taken.
On reason and authority other than the Opin-
ION expressed in Castle vs.. Luce-4tb Hawaiian
Reports and Widemann VS.. Minister Of Finance
3rd Hawaiian Reports p 7S9, 1t is clear that this
Court cannot consider the question Of over assess
mont based on the Assessors Judgment of value, |
and that a failure to appeal to the Tax Board |
leaves the assessment fixed. So much therefore
Of the plaintiffs claim as is based in the alleged
generalization Of the Kula or pasture land is dis
allowed. The defendants arc shareholders 10 the |
Hamakua Ditch Company, the tax on which was |
the subject Of litigation 10 the Haiku Sugar Com
Iany rs. Birch, Tax Collector 4th Hawaiian Re- |
porte P wherein it held that this was separate
property, TO be assessed by itself aud sot appur-
tenant to the land Of the shareholders. The |
Ditch Company has been assessed for its property
and paid the tax. The defendants use the share |
OF water Of the ditch 20 which their proportional
ownership entities them, being one fourth upon |
certain portions Of their land II is not sufficient
to irrigatc all their land Mr. Baldwin's testimony
lie that not to exceed 325 acres may be irrigated |
out Of 940 acres which arc capable Of growing |
cane il irrigated but which arc practically not /
cane land without means OF irrigation. Their /
share Of the Ditch water may be applied to such
portion oil the territory in any year, as they
choose, whereby that becomes cane land The /
Assessors book shows the following appraisement;
$40 acres Of sugar land being 400 acres that is or
can be irrigated at Sl25 per acre, and $40 acres
not irrigated at $50 per acre For the water
which makes any portion irrigated land the
plaintiffs have paid One.lourth of the assessment
laid on the Ditch.
IL is commended IN argument that the Ditch be-
ing valued merely at The cost Of making il. and
Of the material used for pipes aqueducts and
fumes tie value Of the water has not been in
cluded and taxed. There are two elements of
ono the cost, the other the utii- /
tartan value. A ditch might be made which
should be handsomely cut, with architectural
spans across Tallice, and with ornamental ma
senry, but which not leading to q full and con-
slant supply Of water would be Of little or even
Al al.
structon would have been wasted On the other
hand, copious stream of water may be led at
Insignificant expense TO where il will produce a
great profit. Evidently the cost of procuring the
irrigation IL not tho criterion of the utilitarian
value OF the water course. But as a ditch is n
work Tor utility the " cash value . Of il, which
the law regards, must conc to be what it is
worth rather than what it cost. If the Hama
kua Ditch failed to bring water to the value Of
S93 GOO, 1t would not sell for this amount. the
cost OF making it. And il will sell for an amount
proportiouate to ls water, that is its utility in
excess OF the cost Substantially then the value
Of the water must be taken to be the value of the
ditch, Tor there is nothing of considerable value
that can be moved from its site. A great part Of
The cost Of such ditch is D excavation and earth
work. The pipes and fumes, though costly TO
place, cannot be covcrted into equivalent values
when broken up and removed.
If this reasoning is just, it is double taxation
10 assess the ditch and likewise the distributive
shares OF the water thereof The Assessor has
liked the value Of the ditch at what it cost to
make 1t, and which may be more or less than it's
cash value. lie has also charged the plaintiffs
with the value Of one-fourth of the water by the
AMOUNT Of the enhancement Of 400 irrieabIe
lcros from $50 to Sl25 per acre, which is S3s,-
300, on which the tax is S2S5.
To this extent bold that it is duplicate taxa
ion. The case Of Castle vs.. Luce proceeds upon
Inc principle that duplicate taxation will not be
sustained when the Statute does not clearly i'm
lOse II. The presumption lie against duplicate
axation. Says Judge Cooley p. los Of hls trea-
use on Iaxntion. " 1t has very properly and
Justly been held that construction of the laws
vas not to be adopted that would subject The
anne property to be twice charged for the sane
AK unless It was required by the express words
I the Statute or by necessary Implication
With authorities.
some testimony was given ~ the effect that
ome OF the land under cultivation had cost to
lear Of the cactus and other thicket cousidera-
llc sum IN excess Of its valuation as possible
ane land when Watered.
But the facts as 10 cost and as to the area are
lot presented with sufficient oxactness for determ-
ming the eject in This assessment. The Court
an only proceed upon the assessment as above
itcd from the Assessor book, and applying the
oregoing principles thereto, find for the plain
ifs in the sum Of $2S5.
Let judgment be entered accordingly.
IAwKENCE McCULLr,
Justice Of Supreme Court
W. r. Castle ior Plaintiffs; Acknowledgement
lrmst rong for Defendants.
do nOluiu, May 5th, 1882.