The Hawaiian gazette., 1894-10-26

| and the tax OF two dollars to be paid
by each passenger entering these ISL
ands from abroad was abolished, and
a port charge was established, subject
ing every vessel arriving from for
eign port at any of the ports OF
these islands with passengers on
board to a tax of one dollar for
each passenger. The new law enacted
that this tax "should form a part of
the port charges and shall be paid TO
the Collector of the port, and no Col
lectOr shall grant a clearance to any
such vessel until the same be paid.
This legislation was accomplished by
an amendment of the Act of May ID,
1853, and the proceeds were to be de-
voted to the same purposes as when
the tax was paid by the passenger.
There being some doubt whether
this tax should be paid directly to the
Queens Hospital, the Legislature of
1892, (Chap. 40, of the laws of the
year., enacted that "all moneys here.
tofore collected and now uneXpended,
and all moneys which may hereafter
be collected under any existing or fu-
ture statute authorizing the collection
of any hospital tax, shall be paid into
the Public Treasury and held by the
Minister of Finance, as a special de-
| pOsit to the credit and for the benefit
of the Trustees of the Queens Hospi-
tai. Such special deposit shall at all
! times be subject to the order of said
| Trustees, or such officer thereof as may
| be by them authorized, and shall be
by such Trustees devoted to the pur
poses of said Queens Hospital" With
this law in view, showing that the
Legislature considered the Minister of
Finance as the mere agent by which
this fund should be collected, the Leg
islature did not appropriate the Hos
pital Tax. 1t did not consider it as
public revenue subject to distribution
by the Legislature. In addition to
this special tax the Legislature has,
without interruption, from 1862 TO
1892, appropriated biennially various
sums as "Aid to the Queens Hospi-
tai" This, we believe, is all the leg
islation on the subject. To summarize
it: From 1862 to 1890 a tax of two
dollars was levied upon all passengers
for the benefit of the Queens Hospital.
Since 1890 a port charge of one dollarfor
each passenger brought is levied upon
all ships bringing passengers here for
the same object. 1t is urged upon US
that since the Government has uni
formly, with but one exception lin
1871, not collected this passenger
tax" whether imposed upon the pas
senger or the ship, in case the passen-
gers were immigrants or laborers
coming hither under contracts with
the Board of Immigration, it has thus
put construction upon the law,
holding that passengers who are
contract laborers are not passengers"
within the meaning of this tax law.
We admit the principle laid down in
Telephone Co. V. Telephone Co,
Haw. 460, that "the contemporaneous
and uniform Interpretation of an act
of the Legislature by an Executive
Department is entitled to great weight
and in a case of doubt ought to turn
the scale" But the Government had
nothing in this statute to construe.
There was nothing doubtful in the
law. The Government simply de-
cided that they would exempt this
class of passengers from this tax. The
motive for so doing was, as stated to
us in argument, the unwillingness on
the part of the Government to add to
the planters and others employing
these laborers the burden of paying
two dollars apiece which might or
might not be chargeable to the labor
ers, according to the contract between
them and their employers. As we have |
seen, the situation is now materially
changed. The passenger does not now
pay the tax. So the argument as to |
Tightening the expenses of the en-
ployer of labor fails. The reasons for |
:. do
ist Then, too, the tax does not now |
go into the Public Treasury as a gen.
eral realization, to be appropriated to |
the Hospital by vote of the Legisla-
ture. 1t is now, when collected, a |
special deposit and not subject to leg |
islative distribution so long as the
Act of 1892 is unrepealed. The |
Government is a mere depository |
of the fund as the law now
stands. BY the statute there is no dis
cretion vested in the Government
either as to the collection of the tax or
its distribution.
The duty asked by the petitioners to
be done by the Collector General is a
duty. Mandamus is there
fore the proper remedy. Chapter SO of
the Acts of 1875, sec. 5, authorizes the
writ to be directed to public officers to
compel them to fulfill any of the duties
attached to their offices, or which may
be legally required of them. In Castle
V. Kapena, Haw. %, it was held that
mandamus lies against a cabinet min
lister to compel the performance of
purely ministerial duties. This leads
US to the defense made by the Collector
General that he may not be compelled
to exact this tax because he was in
structed in writing by the Minister of
Finance not to collect it. The statute
relied upon is sec. 525 of the Civil Code
Comp. Laws, PIP. 149 and 150.) ain
relation to the collection of duties, and
in all other matters relative to the eX-
ecution of the revenue laws, the col
lectors, and other officers of the Gus
toms, shall obey the written iustruc
tiOns of the Minister of Finance; and
in case any difficulty shall arise as to
the true construction, or meaning of
any part of such revenue laws, the
written decision of the Minister of FL
nance shall be conclusive and binding
upon such collectors, and other officers
of the CUSTOMS We do not under
stand that it is claimed that a construc.
tion of revenue law made by Min
lister of Finance is final and conclusive