The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-06-13
Supreme Court. Hawaiian Islands.
VALDEMAR KNUDsEN VS.. LOUIS H.
SToLz, DEPUTY COLLECTOR OF
TAXES.
EXCEPTIONS FROM DECISION OF JUDD, CD.
APRIL TERM, 1890.
JUDD, C. j., M'CULLY j., BICKERToN, j..
DOLE, j., ABSENT.

JUDD, C. j., M'cULLY j., BICKERToN, j.
| DOLE, j., ABSENT.
The Supreme Court has jurisdiction to heal
| cases relating TO the assessment anc
| collection OF Taxes notwithstanding
| the provision of Tax Appeal Cour
| from which there is no appeal, when
| ever 1T appears that there are involved
| questions touching the constitution
allty or construction of the Statute.
| The existence of clause in lease provid
| ing that the lease shall not be assign &c
by the Lessee without the previous con
sent of the lessor. under penalty Of
J forfeiture of the lease, does not exempt
such leasehold premises from the ta2
to which leaseholds are liable.
| tax which was based on an estimate oil
the income derivable through the re-
mainder of the term of the lease, HE'LL
to be virtually an income tax, and not
legal.
| OPINION OF THE COURT BY M'CULLY, j.
The case comes upon a bill of ex.
captions from judgment rendered
by Chief Justice Judd, who tried the
case, a jury being waived. The ex-
ception is in general terms to the
decision and judgment and says that
the Court erred in giving judgment
for the plaintiff, and says that said
decision is contrary to law and the
evidence given, and refers to and
makes part of the bill the evidence
taken and exhibits filed. What is
necessary from these will be stated
in the opinion. The defendant is
the assessor and tax collector of the
plaintiffs district. The plaintiff paid
him, under protest, the sum of 81, 800,
to recover which he brings this &C.
ton.
In the general exception conten-
ton is made that the Court has not
jurisdiction herein, because the law
has provided another court, the
court of tax appeals, having exclu-
sive and final Jurisdiction. This
point was not presented as plea in
bar, requiring to be decided as pre-
liminary, hence the whole case was
heard without decision on this
head.
The Statute as last amended is
Sec. 40 of Oh. 6S of the Laws Of 1883,
which is as follows:
"Any person whose name may ap-
pear on such tax list, and who shall
have made his returns to the Asses
sor as hereinbefore provided, 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 and character
thereof, or whereby the amount pay
able by such person is increased be-
yond 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 assessment on
lodging with the tax assessor on or
before the fifteenth day of Novem-
Der, notice thereof in writing, stat
ing the grounds of his objection to
the assessment, or to any part there
of, and depositing Herewith the
costs of such appeal"
The plaintiff has claimed and
claims that he is entitled to an Eek
emption" which has not been al
lowed, and that the amount and
character" of his assessment are
erroneous in law. Tie court of tax
appeal has decided against his
claims, affirming the assessment Of
the assessor. He has paid the judg-
ment under protest, and now in this
Court brings his action to recover
the amount. Is he barred?
In Widemann VS.. the Minister of
Finance, 3 Haw. 7S9, the Court says
the Legislature has constituted a
tribunal, which tribunal is not the
Minister of Finance, therefore the
Minister is not authorized to abate
taxes. In Bishop VS.. Judd, assessor,
4th Haw. 80, the Court quote the
above case as authority for the pro-
position that a special remedy which
is exclusive by appeal to the tax ap-
peal board has been provided for
parties who have been wrongly as
sessed. In the first of the above
cases the court could not give
| the plaintiff relief although in a
case where the assessment was
claimed to be clearly erroneous, be-
cause he had made no return and
| therefore was bound by the action OF
assessor, but in the second the Court
says that the plaintiffs claimed that
the law was unconstitutional "a
matter which could not be raised be.
fore the Tax Board nor be brought
| from the Board to this Court, no ap
peal therefore being provided" In
Smith, Minister of Finance VS.
Kockemann Haw. 800, the Court
considered whether property was
entitled to exemption which was
held by a church for its use and
benefit, and in Bishop VS.. Gulicl
Tax Collector 7th Haw. 627 whether
property held in trust for the sup
port of school was exempt. In the
Haiku Sugar Co. vs.. Birch Tax Col
lector 4 Haw. 275 the Court consid
cred whether a valuable water ditch
was exempt from taxation as agains
the claim that the usufruct of it wa!
taxed in the land to which the watel
was applied for irrigation. Il
Turton VS.. Kapena, Minister of Fl
nance, 5 Haw. 275 the Court enter
tanned the question whether there
had been an error in the assessment
with respect to certain mortgages, i
being claimed that there had beer
an erroneous construction of thu
statute by the assessor.
In Castle Il Cooke VS.. Luce Ia.