The Hawaiian gazette., 1884-10-22
7 u = N'NNN
LEcToR.
Opiinion d Jrfd a..


1888 under protest, by the plaintiff to the de-
PENDANT, as tax collector Of Koloa, Island Of
Kauai: and the plaintiff seeks to recover this
sum as being the taxes on theamount Of $751;
SIS owing the plaintiff by Theo. II. Davies &
Co., of Honolulu. 1t appears that Theo. II.
Davies & Co. made due return of their prop
erty to the tax assessor OF Honolulu, without
deducting the debt Of Sl5,5I3, due from them
to the plaintiff.
Tho Minister of Finance comes in for the
defendant and demurs.
The first point to be considered is whether
the Court has jurisdiction. It is urged by de-
PENDANTS counsel that plaintiff should have
appealed from the assessment of this tax 10 the
Court Of tax appeals.
The decisions of this Court of limited juris-
diction are by section so of Chapter 10 Of the
Acts of 1882, declared TO be final and conclu-
sive, but they can only be so upon matters of
which the Court has Jurisdiction, by appeal of
the aggrieved tax payer
Section 40 Of tie Act is az follows:
"Any person whose name may appear on
such tax list, and who shall have made his
returns to the assessor as hereinbefore pro-
yided, and if entitled to exemption. shall have
claimed such exemption. and who may deem
himself aggrieved by any excess made by the
assessor in the valuation of the property as
returned, or in the amount or character thereof,
or whereby the amount payable by such person
is increased beyond the amount which would
be payable by him according to such return,
or whose claim for exemption. shall not have
been allowed, may appeal from such assess
ment, on lodging with the tax assessor, on or
before the FIRST day Of October, notice in writ
ing, stating his grounds of objection to his as
IN ucb lho oh,
lection applies to, and depositing Herewith
sum for cost Of appeal as follows"
There can be an appeal taken where (d.)
there has been an excessive valuation by the
assessor of the property returned; (b.) or where
The amount Of the property is increased from
the return. (Here cases where property is
assessed to person who is not the owner are
provided for:) (c) or where the character of
the property is changed 30 that it is subject to
greater taxation: ID or where the amount of
taxes to be paid is increased by the assessor
beyond that payable by the appellant accord
ing to the return, without changing the char
acter of the property. (Here errors in calcu-
lation can be corrected:) (e.) where statutory
claims for exemption are not allowed by the
assessor.
If the above analysis of the statute be cor
rect, the cases where constructions of the
Act are involved, or principles of law are vio-
lated, which would include cases of duplicate
taxation, are no: covered by the statute.
OF these, the Supreme Court, by the law
which gives it jurisdiction over all cases in
law and and in equity, has jurisdiction. Sec
tons 6l9 and 800 of the Civil Code, and Arti-
Gle 81 Of the Constitution.
Pure questions of generalization, or of in
Guiding property of which the person sought
to be held liable is not the owner, can be rem
edied by an appeal to the "Court of Tax APP
peal" where these matters can be corrected,
and there seems to be no reason to doubt that
they cannot be corrected by resort to an action
at law.
See Howe VS.. Boston, Cush 273. Lincoln
VS.. Worcester, s Cush. So. Cooley on Taxa
ton, p. 52s. Castle VS.. Luce, Haw'n So.
The question in the case before me is whether
debt is subject to taxation This is a
question of law. BY the Civil Code of 1851 i,
Sec. $40, the term personal property" shall
be construed to include all household furniture,
goods and chattels, wares aud merchandise, all
ships ana vessels, whether at home or abroad,
all moneys III hand and moneys loaned, all mort
cages, public stocks, stocks in corporations,
and every species of property not included in
real estate.
Section l6 of the Act of 1882, now in force,
prescribes that the term personal property"
for the purposes of this Act shall be deemed
to mean and include all household furniture
and effects, goods, chattels, wares and mer-
chandise, all ships and vessels, whether at
home or abroud, all moneys IN hand, leaseholds
and chattel interests in lands and real estate,
growing crops, public stocks and bonds, and
all domesticated animals not herein specifically
taxed.
1t was the manifest intention of the Legis-
lature of 1882, to no longer tax as property
"debts" or evidence of Indebtedness whether
secured or unsecured, and to impose taxes only
upon tangible property. The words of the for
mer law moneys, notes Of hand, unsecured
debts" are omitted in the present, and call
moneys in hand" substituted therefor.
Only actual cash in hand is taxable. The
imposition OF tax upon promissOry notes,
book debts, accounts owing, in fact every spe-
cies of mere representatives of value, is by the
present law illegal. The only exception to
this is that of 'public stocks and bonds" and
the provision that the mortgagor OF property
which is morgaged is liable to taxation, (as
between him and the mortgagee,) on the differ
ence between the whole value of the property
mortgaged and the amount of the money due
on the mortgage, and this was so enacted in
order to avoid the imputation OF double taxa
ton.
The tax collected of the plaintiff being upon
debt owing her by third party, was Illegally
collected, and having been paid under protest
should be returned.
The demurrer is overruled
The defendants counsel intimaliDg that he
has no further answer to make, judgment may
be entered for the plaintiff for Sll6.25 without
interest or costs.
W. II. Austin for plaintiff; W. A. Whiting,
Deputy Attorney-General for defendant.
Honolulu, Sept. 80, 1884.