The Hawaiian gazette., 1884-10-22
Opinion o. Jsad ca.

This is an action TO recover Sll6.2j paid in
1883 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 Sl5,-
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 Slj,5l3, due from them
to the plaintiff.
The Minister Of Finance comes in for the
defendant and demurs.
The first point to be considered is whether
the Court has jurisdiction. 1t is urged by de-
PENDANTS counsel that plaintiff should have
appealed from the assessment Of this tax TO 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 upoa matters Of
which the Court has Jurisdiction, by appeal Of
the aggrieved tax payer.
Section 40 Of the Act is as follows:
"Any person whose name may appear on
such tax list, and who shall have made his
returns to the assessor as hereinbefore pro-
vided, and if entitled to exemption, shall have
claimed such exemption. and who may deem
himself aggrieved by any excess made by the
/
returned, or in the amount or character thereof,
or whereby the amount payable by such person
is increased beyond tine 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, a notice in writ
ing, stating his grounds of objection to his as
ssssment, or to such portion thereof as the OBJ
lection applies to, and depositiug Herewith a
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; o. 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 50 that it is subject to
greater taxation: (d) 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.O 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 not 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
tions sl9 and 800 of the Civil Code, and Arti-
Gle 67 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, Cush. SIS. Cooley on Taxa
ton, p. 52s. Castle vs. Luce, Haw'n 60.
The question in the tease before me is whether
a debt is subject to taxation. This is a
question of law BY the Civil Code OF 1857.
Sec. $40, the term personal property" shall
be construed to include all household furniture,
goods and chattels, wares and merchandise, all |
ships ana vessels, whether at home or abroad, |
an moneys il, haul aRd moneys loaned, all mort |
cages, public stocks, stocks in corporations,
and every species Of property not included in |
real estate.
Section 10 of the Act of 1852, 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 ''all
moneys in hand" substituted therefor.
Only actual cash in hand is taxable. The
imposition Of a 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 mortEagor Of property
which is mOrgaged is liable to taxation, las
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
a debt owing her by third party, was illegally
and having been paid under protest
should be returned.
The demurrer is overruled.
The defendants counsel intimating that he
has no further answer to make, judgment may
be entered for the plaintiff for Sll6.25 without
interest or costs.
W. X. Austin for plaintiff; W. A. Whiting,
Deputy Attorney General for defendant.
Honolulu, Sept 30, 1884.