The Hawaiian gazette., 1890-06-17

| QuoSIlOu Was uDOH Ol0 0A6upJlOu VI
| liability upon merchandise shipped
for export, bnt not yet transported
beyond the Kingdom on the first
day of July. In the Union Feed Co.
VS.. Luce Tax Collector 7 Haw. 81
the Court held that the plaintiff was
bound by the amount of the assess
ment fixed by the assessor, without
right of appeal to the Tax Appeal
Board, since it had not made its re-
turn within the time prescribed by
the statute.
From this review Of all the re-
ported tax cases in the Supreme
Court we derive the rule that in all
cases where there arises question
of the constitutionality or construc-
ton of law the matter may be heard
in the Supreme Court, and for this
reason the Board of Tax Appeal is
not the Court of final resort for the
determination of the law In this
Kingdom, but the Supreme Court is
and there cannot be an inferior juris-
diction which shall exclude the jurls-
diction of the highest tribunal, in
questions of law These cases have
not come to the Supreme Court by
appeal from the Tax Appeal Board,
no appeal lying therefrom. They
have been brought in some instances
as submissions without action, be-
tween the owners of property and
the Minister of Finance, or the Tax
Collector and sometimes as actions
against the collector for recovery of
money paid under protest.
The Court has in no case reviewed
the discretion of the assessor in fix
ing a value merely. For mere ex-
cess made by the assessor IN the
valuation of property as returned
the only remedy is in the Tax Ap-
peal Board. The return must have
been made within the time pre-
scribed by law. 1t does not appear
in any case that resort may be had
to the Supreme Court unless re-
turn has been made to the assessor
and the claim of exemption made
Herewith. The tax in question is
laid upon the value of two leases
from the Commissioners of Crown
Lands to the plaintiff. The leases
each contain a covenant that the
lessee will not demise, let, set, or as
sign the premises without the license
and consent of the lessee in writing
first obtained, under penalty of for
fixture of the lease. Leasehold in
terests in lands and real estate are
personal property and taxable. (Sec.
Is of Tax Act p. 120 G. L. The in
terest of any person as tenant lessee
or occupier of any real estate that is
exempt from taxation, shall be as
sessed to such person, who shall be
liable to taxation in respect of such
interest. Sec. n p. 122 G. L. By
this provision the lessees of Grown
lands which are exempt from taxa
ton are liable to taxation upon their
leases. The plaintiffs contention
that he is not so taxable is based on
section % found as amended at page
81 of the Acts of 1856. The full cash
value of the interest of any person in
any real or personal property shall
be estimated at a sum which such
interest might reasonably be ex-
pected to bring at a sale by
public auction for cash, in
that a lease which is forfeitable
by sale or transfer is of no value.
If this view of the law were correct
1t would have wide application, not
limited to crown land leases. 1t is
common provision in leases. If by
the insertion Of a clause for non
assignment the lease could be ex
empted from taxation it would be-
come by so much more valuable, and
it would be a question between
landlord and tenant who should
take the annual sum thus protected
from the tax-collector. 1t is safe to
say that tenants would pay no more
taxes in this kingdom.
1t is to be observed that upon
consent being given to assign, these
leases may be sold-so they have a
value, if the lessor permits. The LA
bility of property to taxation then
would depend, not upon the law, but |
upon the will of lessons construc-
ton leading to a legal absurdity. |
These leases are made to the lessee
g his successors administrators and |
assigns" No one will contend that |
they are not valuable personal prop
erty passing to the lessee's admins |
traitors without condition, and to |
assigns upon a condition. But the |
provision of Sec. Is must be con-
sidered a rule of estimation merely. |
Under such rule, the value of the |
leasehold property to the plaintiff |
might be rated. So property in |
which the holder has only life in
terest has a value assessable, at
though not saleable, and if would |
not be the value of the life interest |
which would be assessed, but of the |
entire estate going to the founda-
ton of the rule in the statute. How
is the estimate of the sum which a
property would sell for made, but |
uDon view of the income rants or /