The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-09-24
Supreme Court of the Hawaiian
Islands.-In Banco. June %,
1889. Sitting in Vacation.

BEFORE JUDD, Co., M'CULLY, PRESTON AMI
DOLE, u. (BIcKEBToN J. ABsENT.)
Opinion per McCuJly j.
UPON THE FOLLOWING SUBMISSION.
"The undersignedthe Hilo Sugar
Company, a Hawaiian Corporation,
plaintiff, and William L. Green,
Minister of Finance, defendant,
having agreed with each other, and
hereby agreeing upon the statement
of facts hereunder written, respect
fully submit the same for hearing
and judgment of your Honors,
whether the said Minister of FL
nance is liable to return to the said
Hilo Sugar Company the moneys
here claimed by said Company"
The agreed statement above men
toned.
"On the twenty-ninth day of
June last, the plaintiff had COM
pleted the loading of a cargo of
sugar to wit: (43O) four hundred
and thirty tons, consigned and in
voiced to San Francisco, California,
on the vessel called the George c..
Perkins, then lying at anchor in the
port of Hilo, of the Island of Ha-
wall, and was notified by the pilot
of said port, one L. E. Swain, that
said vessel had better get off by the
land breeze the next morning. Said
pilot went on board said vessel at
eight o'clock on the morning of the
next day, June Both, and at about
nine o'clock am. on the Both day
of June last, the said vessel obtained
her clearance papers from the Gus
tom House at said port for the port
of said San Francisco, and the said
pilot thereupon took charge of said
vessel, hoisted her anchor and en-
deavored to get away, but failing
TO do so on account of light breeze,
dropped anchor, and remained on
board and in charge of said vessel
awaiting a favorable breeze to get
away, but the wind was so light
that he was not able to get out of
the harbor of said Hilo until be-
tween two and three o'clock in the
morning of the following day, being
Sunday, the first of July last, when
he finally weighed anchor and took
said vessel out Of said harbor and
she thereupon proceeded upon her
said voyage to said San Francisco,
but that said vessel did not pass
beyond three miles of the shore of
said Island until some hours later.
"The said vessel while so in
charge of said pilot was not re-
entered at said Custom House.
"The said sugar valued at (S34,-
400 thirty-four thousand and four
hundred dollars, was assessed for
that sum to the plaintiff by A. B.
Loebenstein, assessor of taxes of the
District of Hilo, and the tax there
for, to wit the sum of ($344) three
hundred and forty-four dollars, was
demanded of said Company by
Daniel Porter, tax collector for said
District, and was paid to him by
said Company, in order to avoid
proceedings to enforce payment
hereof, and under written protest
and claim that said tax was illegally
assessed and illegally required, on
the ground that said sugar was not
in possession of said Company on
the first day of July, for purposes
of taxation and within the meaning
of the law concerning the assess
ment of property, which said pro-
test is hereto attached, marked
Exhibit GA" and made a part
thereof. Wherefore the plaintiff
claims that said sum of three hun
dred and forty-four dollars should
be returned to it, while the defend
ant claims that said tax was law
fully assessed as aforesaid, and that
its payment was lawfully required
and received as aforesaid, and that
he is not liable to return the same
to the plaintiff.
"The said parties further hereby
agree that this is a real controversy
between them, and this proceeding
is brought in good faith to deter
mine the rights of the parties in
the premises"
A. S. Hartwell for the plaintiff.
PLAINTIFFS POINTS.
The question whether the sugar
was taxable depends on whether
this sugar belonged to the plaintiffs
and in the meaning of the law was
"within this Kingdom" or the
plaintiffs, I" had the possession Gus
tody or control of it on the first day
of July" within the meaning of
the tax law.
The vessel containing the sugar
was in port at Hilo, ready for sea
June Doth, and was on that day
notified by the pilot that she had |
better get off the next morning.
AT 8 o'clock on the morning of |
June 30th, the vessel was cleared |
for San Francisco, the pilot had her
in charge, hoisted her anchor, and |
tried to get away. but light breeZes |