The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-12-16
OPINION OF THE COURT BY BECKER
TON, j.

The question raised by the papers
in this matter is the amount OF stamp
duty required upon certain lease
made by Benjamin +. Dillingham; to
w. II. Castle, dated 10th day Of De-
cember, 1889, of certain premises in
the District of Eva, Island OF Oahu,
w. II. Castle claiming that the
amount of stamp duty required upon
such lease is only five dollars, which
stamp has been placed on tho said
lease, the lease setting forth that in
no case shall the rent be less than
five thousand dollars per annum,
which is the only fixed rent named
therein; whereas, the Minister of
Finance claims that the amount to be
paid, as by said lease required, is four
per cent. upon the sugar produced
upon the lands demised, and he believ-
ing that the amount of such rent will
not fal! below twenty-five thousand
dollars per annum, fixes the stamp
duty at twenty five dollars.
BY THE COURT.
Sec. 6 Of the Stamp Duties Act OF
1876 reads: Every instrument con-
tanning distinct matters, or made for
more than one consideration, shall
be stamped on each matter or con-
sideration."
On examination of the lease in
| question, we find that it contains
three distinct matters:
First-A fixed rent of five thou
sand dollars per annum.
Second An agreement that in
lieu of rent for the demised premises
the lessor shall be paid one twenty
fifth of all proceeds of all sugars or
other produce raised on said lands
after deducting certain specified
expenses and charges, but for the
years 1890 and 1891 the amount OF
$4,000 each year shall be paid as
rental in place of such per centage.
And, further, that if in any year the
amount of per centage should not
amount to $4,000, then the sum of
$1,000 shall be paid as rent without
regard to per centage.
Third An executory agreement
for the sale of all the wood now
growing upon the land of Wal
manalo to the lessee for $1,000 paid
in paid-up stock of the sugar planta-
ton to be established for the cultiva-
ton of t.. demised premises.
AS to the first matter there is no
dispute, and the FIVE dollar duty
stamp is affixed to the lease. The
statute requires one dollar stamp for
every $1,000 Tor fraction thereby
rent per annum; in this case the
fixed rent being $1,000 per annum,
the stamp duty is five dollars.
As to the second matter, to try and
fix the stamp duty on such an agree
ment for rent would only be working
in the dark and guess work--there
is nothing certain; all would have to
depend on the state Of the market,
state of the crops, state of the
weather and many other contingent
cies which it is impossible for human
ability to ascertain with any GER
tainty. We do not consider that the
statute contemplates the charging OF
stamp duty in such cases, where
there is fixed rental named in the
same tease, db III tuiS CdSc- Due Ibit
, is a distinct agreement, and under
the statute requires stamp duty o.
one dollar.
As to the third matter, it being al
. executory agreement for the sale o
the wood, the stamp duty required il
one dollar.
f, We, therefore, find that tn
amount Of stamp duty actually re
quired under the law upon the leas
in question, is seven dollars.
Deputy Attorney-General Creigt
ton for plaintiff; w. r. Castle i
; person.
Honolulu, October 21st, 1890.
PARTIALLY DISSENTING OPINION o
DOLE, j.
; There is no authority in the statut
for basing a charge of stamp duty o
: a lease in such a case, where rent
f made a percentage of the profit,
upon an estimate of prospective Pre-
! fits. Moreover, such an estimat
would be merely speculative, an
often unjust to the taxpayer. Iagre
therefore with the opinion of th