The Hawaiian gazette., 1884-10-15
Balraiiall 6azettt,
wEpNEspAY, ocToRER is lssl
Supreme Court of the Hawaiian Islands.--
ClH
iKoE, tw.) vs. +. H. HArsELDEN, Tax As
SCISSOR OF Honolulu.

Brfors Chfrf Justice Jifd1. 1rfPloH-
This is a petition for Naudamus TO conpe
the issuing of a Certificate of Appeal to the
Court Of Tax Appeal Of Honolulu.
On the part Of the petitioner it is shown thai
she bv her Attorney, G. ". Pilipo placed, OF
the 3lst July, 1881, in respondents hands
list Of her property with valuation, GA a blsnl
furnished by respondent. The blank was mol
signed. but Mr. Pilipo says he was ready tC
sign it when sworn to its correctness by the
assessor and which he expected him 70 do
but the assessor took and accepted the return
without requiring him TO sign or swear to it
That on the 18th Of September, tone OF the
DAYS on which the assessor is required by law &c
attend with his tax list, in order that lersons
liable 10 taxation may inspect the same,) Mr.
Pilipo went 10 the respondents Office, and OF
examination Of the list, found that the valua-
tion Of the property Of Aikoe, had been much
increased: that he stated to respondent that he
desired 10 appeal against the assessment and
thereupon demanded certificate of appeal
The respondent replied that he would moi
grant him an appeal because the return was
not signed and was not legal return. The
refusal TO grant an appeal being persisted in,
the petitioner applies for a mandamns 10 com
pei the granting Of a certificate of appeal.
The answer and return Of the respondent 81
TO the effect that the petition is insufficient be-
cause il Is no where alleged that the plaintiff
has lodged with the tax assessor notice in
writing stating the grounds Of objection to her
assessment, or that she deposited Herewith q
sum for costs Of appeal as by law required.
Also that the assessor duly advertised the
days according TO law, during the month Of
July, when he would meet the residents Of
Honolulu, 10 receive statements Of their pro-
perry and that during such time neither tie
plaintiff nor any one On her behalf presented
70 the assessor any statement Of her property
and that thereupou he assessed the property Of
the plaintiff IN accordance with the law
The assessor states in evidence that be has
no recollection Of Mr.. Pilipo's presenting him
with Aikoe's reiurn,-that the first recollcc-
ton he has Of this matter is an interview on the
18th sept, when be refused the appeal TO Mr..
Pilipo, lecause the return was not signed.
Mr.. F. l. Clarke who acted as the assessors
assistant says that be has no recollection Of
who gave him Aikoe's return but that ii bears
the endorsement in his handwriting "Aikoe,
Honolulu, Reed. Aug. LIST, 1854" and that he
was instructed to endorse dates and receipts
of blanks deposited after 3lst July
W. IA ~ Il June HlSlAlNG Auat ne uauQeu
the return 10 Mr.. Hayselden on the 51st July,
and details the circumstances.-He also says
that when he presented the return, be asked
Mr.. Hayselden if there was anything more TO
do and Hayseldeu replied no" Ii is quite
possible that Mr.. Hayselien did not hand the
return 10 his assistant Clarke until Aug. LIST.
In default Of distinct recollection to the con-
trary by Hayselden and Clarke feel compel
Id o., 4,t-a NJ DTfrEz--a
explanation
The facts being thus settled, the question
arises whether the assessor was justified in
refusing the appeal on the ground that the re-
turn was not signed.
The law requires the return TO be signed.
Il is equally imperative in requiring it to be
sworn 10. The petitioners counsel says be was
ready TO comply with these requisites. but
that the assessor did not require them Of him.
Il is the plain duty Of the assessor to see to ii
that the fOrmaliiies Of the law are complied
with and be mus; call the attention Of the per-
son presenting the return, to the defect. If he
however, accepts It without question it must
be taken as being conformable 10 the law and
he cannot thereafter take advantage Of the de-
feet and deny an appeal on account Of this de-
feet
But i; may be said that the signing of the
return is a requirement Of the law binding
upon the tax payer separate and distinct frum
the requirement Of swearing to it. So far as
this case is concerned it must be held other
wise, for the blank prepared by the Govern
ment contains at the end, jurat in the form
prescribed by the statute and below it a blank
line for tie signature, and below this the fol-
lowing: Signed and sworn to before me this
-1NT Of lSS
ACKNOWLEDGEMENT Tax Assessor.
This Is quite sufficient TO make the person
presenting the return believe that the signing
must be in presence Of the tax assessor and as
part Of the act Of swearing to it, and also that
the date is to be filled out by the assessor.
The further point made in the answer to the
petition that the petitioner did not lodge with
the assessor a notice in writing stating his
grounds Of objection TO the assessment nor de-
post costs Of appeal consider insufficient
the facts Of this case.
1t is well settled principle of law that
where the tender or performance of an act is
necessary to the establishment of any right
against another party this tender or offer is
waived or becomes unnecessary when it is
reasonably certain that the same will be re-
fused"
This principle was adopted by the Supreme
Court in johnson VS.. Tisdale Haw'n COS.
The assessor had said he would not grant a
certificate Of appeal to the applicant because
the return was not signed. The applicant was
not obliged to state his objection to the assess
ment in writing or TO tender costs for be had
more than reasonable cause 10 believe that his
appeal would be refused. It would be work
OF supererogat:on after such positive state
ment by the assessor TO write out the objection
70 the assessment and to tender costs.
am Of the opinion that the petitioner is
entitled to a certificate of appeal.
Let mandamus issue.
e. W. Pilipo for plaintiff: The Deputy At
torney General for respondent.
Honolulu, October 9th, 1854.