The Hawaiian gazette., 1885-02-18
Aalpaiialt 6azette.
wEbSEsDAT +, FEBRUARY Is Ass
@, BHEwKR & Co. vs.. Oh. LvcE Tax
COLLECTOR.
opirior Of cli,f Justice Judd; Jury 6,isq ,raic,


Opinion Of CHIEF Justice Jsdd; Jury being 'r'ired
The plaintiff corporation claims to Re re-
funded taxes paid under protest, as follows
one hundred and seTenty-two 50-lo0 dollars
for taxes on S23, 900 assessed lst July, lssi,
as "Reserve Fund" Of The plaintiffs. I'D
Mr.. PC Jones, President OF the plaintiff
corporation testified that this amount appeared
on its books % a credit, derived from accnmu-
lated commissions, interest, dividends and
other profits. That il was not regarded as
cash and was not in the safes Of the corpora
tiou or in the bank, bat was invested in other
accounts, and TO realize upon il, 4 collection
would have to be made from some one who
owed the corporation on this account. This
explanation makes il plain that the Reserve
Fund was simply credits or debts due the
corporaticn. II has no concrete existence and
is not by the law now in force taxable prop
erty, and comes within the principles of Nc
Bryde VS.. Kala, decided by me in September
last.
On This count Judgment must be for the
plaintiff.
The second count IN the declaration is for
two hundred and EsteeD 6s-i0O dollars taxes on
S2s, 75I worth Of sugar shipped on board the
American s. S. Alapsdd.
Il is in evidence that there had been ship
ped BY plaintiff corporation on board the Atd-
media some 54s5 bags Of sugar. The bill Of
lading is dated the 2sth June, 1854, and
think the proofs make it certain that it was all
laden on board the vessel before the LIST July
The vessel sailed atabout noon Of the LIST July.
The sugar was proved 10 be the property Of
some eight different corporations and individ-
uals, of whom the plaintiff corporation was the
agent, and was consigned to WEIGH & Co. Of
San Francisco, to whom the bill of ladiDg had
been mailed.
1t is commended by plaintiffs that this sugar
is not taxable:
LIST Because IT was not the property Of the
plaintif-but was the property of corporations
which have corporate existence within this
Kingdom and Of individuals within this King
dom,
and. Because the sugar being laden on board
Of foreign vessel, is not, in contemplation o.
law, within this Kingdom.
3rd. Because the sugar WAS not in the pos
session, custody OF. control or the plaintiffs.
In my opinion Sec. 81 Of the Act Of 1882. as
well as other Sections, make property assess
able TO the persons in whose possession Oh
control it may be on the lst Of July OF eacl
year. The duty of ascertaining who the true
owner may be is not cast upon the assessor
The law imposes taxes in rem and the res ii
taxable in the hands of the person holding i
and the collector need not look further. II
require that each assessor should try and pass
upon titles to personal property and decide
correctly at the peril of losing TO the State tn
tax upon it, would operate to encourage eva.
sions and consequently to place heavier bur.
dens on the honest. think sugars in til,
hands of corporation acting as a commission
merchant or plantation agent are properly tax
able TO it. ~
The sugar was within this Kingdom, al.
though laden in the hold Of an American
steamship. Any other construction could adj;
init Of articles of great value being placed OIL
board of foreign vessel in the harbor on th'
30th June, and returned on shore on the 2nC
July, and thus escape taxation. The cas-,
cited, Grape rs. Kelley, 10 Wallace 6l0, doe
not apply. This was a question whether tn,
in Massachusetts by Judge Of the Insolven
Court, passed the title to his assignee in insol
vency, Of ship then on the high seas. Tn
Court held that for tue purposes of this sui
the ship though on the high seas was portion
of the territory of Massachusetts, and the It'll
to her passed with the like effect as if sh
were physically within the limits OF the Stat
Of Massachusetts, and so subsequent attach
ment on her arrival in the port Of New Yorl
was invalid.
The sugar, though its bills of lading wer
mailed to the eonsignees in q foreign port, was
for the purposes of taxation, still in the pos
session and control of the Ghipper. -
On this count judgment must be for defend
and
". r. Austin for plaintiffs; Attorney Gen
eral Neumann for defendant.
Honolulu, February 9Th, 1885.