The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-05-10

OPINION OF THE COURT BY FREAR, j.
This is an action OF assumpsit to
recover $500 paid December ID, 1893,
under protest, by the plaintiff to the
defendant as taxes alleged to have
been illegally assessed upon tract
of land called Waihee," in Koolau-
poke, Oahu. The land, which is
leased for thirty years from March
Is, 1869, at a yearly rental of $500
was returned by the plaintiff at
$4,000, this being eight years rental;
but the assessor increased the valua-
ton to $4,000 The case comes
here on plaintiffs appeal from the
District Court of Honolulu. At the
trial In that Court the defendant was
of the opinion that the property was
worth $4,000, and the plaintiff ad-
mitted that if unincumbered by the
lease it would be worth $4,000,
whereupon the defendant accepted
the admission for the purposes OF
this case.
The defendant contends that this
lis at most merely case OF over val
uation, for which the only remedy is
an appeal to the Tax Appeal Conrt
provided by the statute claws 1892,
Oh. LXI, Sec 49, The plaintiff
contends that the case is one in
which the construction Of statute is
involved, and therefore cognizable
by court of law, as decided in
Knudsen v. Stoltz, 8 Haw. 81. We
are Of the opinion that the view of
the plaintiff on this point is correct,
but that it has not been shown that
an erroneous construction was put
upon the statute by the assessor.
The question is whether the
assessment should have been based
upon eight years rental, or upon the
full value of plaintiff interest In the
property. The tax law above cited pre-
scribes the following rules for esti
mating the value Of taxable property.
"Section 26. The full cash value OF
all real property and all personal
property, and of the interest of any
person in real or personal property,
within the meaning OF this Act,
shall be estimated at a sum
which such real or personal property
or such interest therein might rea
sonably be expected to bring at
sale by public auction for cash
Provided, always, that when any real
estate or house is leased or rented,
the sum of eight years rental shall |
be the assessment value of such real
estate or house, unless such valua-
ton shall be manifestly unfair CT
unjust.
'iSection q. The interest of every |
person in any property shall be |
assessed Except as herein |
provided In respect to shareholders |
In or members of companies) and |
every person shall be liable to tax
alton in respect OF the full value of |
his interest in such property"
The proviso of Section 26 is the |
part of the statute to be construed. |
1t is argued by the plaintiff that this
is a positive rule of law requiring an
assessment of eight years rental, |
subject only to the qualification "un-
less such valuation shall be mani
testify unfair or uDjust;" that this
qualification was made only in favor
Of the person taxed; or, if made in
favor of the government as well,
then the burden Of proof was on the
to show that it applies
70 this case, a showing which, it is
argued, has not been made. For the
1efen iant it is argued that thus pro
viso is mere guide to the assessor,
hat it is not obligatory upon him, it's
'orce being destroyed by the qualiti
,ation attached to it; or if more than
mere guide, the qualification ap
lilies in favor of the government as
veil as in favor of the party, and has
,een shown to apply in this case.
1t seems to US that the rule is
more than a mere guide.
Under the tax law of 1882 (Ch.
LIII, Sec 90 there was no quslifi
alton of this kind attached to the
,royiso. Under the law of 1856 (Ch.
LXXVII, Sec 81 the proviso was al
ooether omitted. In 1892. as above
hown, the proeiso was again enact
q, but. apparently to provide for
cases, the Legislature
dded the qualification in question.
will be noticed that departure
ON the rule is authorized only
hen its application would be mani
stlv unfair or unjust. This shows
lat the rule was intended to be ad-
cred to except in cases where to do
would be- evidently, plainly. obvi- {
1slv. unfair or uDjust,-where,
arhaps, there could be no reason
lie difference of opinion. See Mat
: of Hernmance, IL n. Y. 4S1, and I