The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-06-24
Booro MoCaliy. j.. 10Th Jury Waired.
5. T. ALEXANDER AMI II. p. BALDwI< W. ABR,-
HAM FoRxANDER, Tax COLLECTOR, ETC.

The plaintiffs claim herein from tie Tax Col
lector Of Maui $3l6.0j paid under protest on
S42,li0, assessment illegally ialselx and doubly
assessed.
Excess Of assessment is claimed on two items.
lst. Because a certain acreage Of Aida or dry
and pasture land has been appraised at $40 per
acre, whereas IL is not worth more than $3.50
per acre, at which value il was returned.
2nd. Because an area of land on which sugar
cane is grown by the aid Of water from " Tho
Haiku Ditch owned by a Ditch Company OF
which plaintiffs are members is taxed upon the
footing Of land to which water rs appurtenant,
while the Ditch is separately assessed and taxed,
Sd that there is said 10 be double taxation. IL 10
first 10 be considered il the Court has jurisdiction
in these items or either OF them.
10 Castle W. Luce ", Hawaiian Reports the
Court entertained tho case CT a complaint that
tue plaintiffs being shareholders in the Haiku
plantation were taxed on the market value OF the
shares while the plantation and its material had
paid taxes "a sohdo upon all the vulue represented
by the stock.-rhe Court say - for any defect or
irregularity in assessing the taxes, or excess in
valuation, the party must appeal 90 the Appeal
Board.
This was claimed by counsel 70 be obtcr dicfun.
Ii is stated without reasoning or citation OF au-
thorities. Bat without considering il ohtr the
matter may hc now examined. In Bovine We.
City %. Boston, IL h. held. Bigelow j. that the
principle IL now well settled by the authorities
tuat the sole remedy TOT an over thAoNlon-Cauecu
by an excessive valuation OF property or by In
Guiding in the assessment property Of which the
person is not the owner or Tor which he is not liza
BILE to taxation is by an application 90 the Asses
sor for an abatement, aud there Is no remedy by
an action at law. This agrees with Howe W..
Boston. Z Cush. 273, Lincoln VS.. Worcester 3
Cush. S..
Judge Cooley p. sos Of Cooley on Taxation
states the law to be thar for a merely excessive or
unequal assessment where no principle OF law 10
violated in making il. and The complaint IL Of an
error OF Judgment only the sole remedy is an ap-
~plicaton for an abatement. either TO the Asses
sors or to such statutory board as has been pro-
vided for hearing il.
Upon examining the Massachusetts, Statute. 1
find no express provision that there shall be no
other remedy, aud IN this respect our own is the
same-SectiOn Q OF the Act of 1860, constituting
Tax Appeal Boards provides that tho Tax Col
lectOr may grant any person d%isputingt the
of his assessment a certificate OF appeal TO the
Tax Appeal Board OF the district. There is no
express provision for application 10 the Assessor
to abate, but as the determination OF the value is
a matter Of the Assessors Judgment any consid-
e%rations affecting il may be urged on the Assess
sor before he has closed his roll. There Is then
an appeal to a board Of three other persons, who
being Of the same district, the Police or District
Judge being one, and two who are appointed as
knowing the values Of property, determine IL
there has been an oyer-yaluation.
IL 10 conceded by plaintiffs counsel that there
can be no appeal from this board to the Supreme
Coart, bat it Is claimed that the provision that
the Supreme Court shall have jurisdiction Of all
cases in law or equity whether the same be
brought before it by original writ by appeal or
otherwise, Civil Code Section 800 and const. Act
81, permits the plaintiffs 60 bring any contro-
versy with n 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 rom the Tax Appeal Board, there be-
ing no exclusive words ia the Statute. which, cor
rectly, the counsel admits cannot be taken.
On reason and authority other than the orin-
ion expressed in Castle vs.. Luce-4th Hawaiian
Reports and Widemnnn W. Minister OF Finance
Bird Hawaiian Reports p. 7S0, IL is clear that this
Court cannot consider the question Of over assess
ment based on the Assessors judgment OF value,
and that n failure 10 appeal to the Tax Board
leaves the assessment fixed. So much therefore
OF the plaintiffs claim as IL based i'm the alleged
generalization Of the Kula or pasture land is dis
allowed. The defendants are shareholders in the
Hamakua Ditch Company, the tax on which was
the subject OF litigation m the Haiku Sugar Com
pany VS.. Birch, Tax Collector 4th Hawaiian Re-
ports p. wherein IL was held that this was separate
property, 10 be assessed by itself, and not appur-
tenant to the land Of the shareholders. The
Ditch Company has been assessed for its property
and paid the tax. The defendants use tie share
of water Of the ditch 20 which their proportional
ownership entities them, being one fourth upon
certain portions Of their land. IL il not sufficient
" 80 49, MI hhNiA iAAas WI snAA III y AAlu
is that not to exceed 1916 acres may be irrigated
out OF $40 acres which are capable Of growing
cane if irrigated, but which are practically not
cane land without means Of irrigation. Their
share OF the Ditch water may be applied to such
portion OF the territory in any year, ms 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 NJ 1925 per acre. and $40 acres
not irrigated at $50 per acre. For the water
NuItgh unla onn 80. ar.-.s.I - -
plaintiffs have laid one-fourth Of the assessment
laid on the Ditch.
lie is contended in argument TINT the Ditch be-
ing valued merely at the cost Of making it, and
OF the material used for pipes aqueducts and
fumes the value Of the water has not been in
cluded and taxed. There are two elements of
appraisement, one the cost, the other the utili-
tartan value. A ditch might be made which
should be handsomely cut, with architectural
spans across vallies, aud with ornamental ma
sonry. but which not leading to a full and con-
slant supply Of water would he Of little or even
OF no useful value. The great outlay Of con-
structiOn would have been wasted. On the other
hand, a copious stream Of water may be led at
insignificant expense to where it will produce a
great profit. Evidently tho cost Of procuring tho
irrigation is not the criterion Of the utilitarian
value Of the water course. But as n ditch IL a
work for utility the 9 cash value " OF il, which
the law regards, must come 70 be what IL il
worth rather than what it cost. If the Hama
kuo Ditch failed TO bring water to the yalue OF
S93 900, it would not sell for this amount, the
cost Of making it. And il will sell Tor an amount
propOrtiOnate to It's water, that is its utility In
excess Of the cost. Substantially then the value
Of the water must be taken 70 be the value Of the
ditch, for there is nothing Of considerable value
that can be moved from it, site. A great part of
the cost Of such a ditch is in excavation and earth
work. The pipes and fumes, though costly TO
place, cannot be coyerted into equivalent values
when broken up and removed.
If this reasoning il just, il is double taxation
to assess the ditch and likewise the distributiye
shares Of the water thereof. The Assessor has
fixed the value Of the ditch at what it cost TO
make it, and which may he moro or less than its
cash value. lie has also charged tho plaintiffs
with the value Of one-lourth Of the water by the
amount Of the enhancement Of 400 irrigable
acres from $50 to Sl25 per acre, which is $685.
000, on which the tax - $285.
IL 80 IL