The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-10-24

From Wednesdays Daily.)

peals at San Francisco has forwarded
the income tax case upon its calendar
e and agreed to hear 1t upon November
10th, so that decision may be reached
. before any proceedings shall be insti
tuted against delinQuents. Alex Rob
ertson sailed on the Sonoma yesterday
and will appear for the Territory al
the argument. Assistant United States
Z District Attorney Dunno, who Is now
in San Francisco, has been employed
by parties interested there, and will
appear for the tax payers; Colonel
Fitch will not go to San Francisco, be-
ing kept here by important business
but he forwards an elaborate brief OF
seventy-one printed pages.
This proceeding" says the brief for
the appellants, was instituted to en-
join the collection of the Hawaiian in
come tax; a demurrer was interposed
upon the ground that complainants had
an adequate remedy at law, and that
the bill disclosed a want of equity.
The lower court sustained the demurr-
er upon the former grounds; and, with
out affording complainants any oppor-
tunity to amend, summarily dismissed
the bill outright, instead of without
prejudice Hence this appeal.
THE bill was filed by some sixty or
more of the leading merchants of Ho-
nolulu."
The bill alleges the invalidity of the
income tax law, and AYERS that not
withstanding such invalidity, J. w.
Pratt, collector, is threatening to COL
lect the same, and if the compliments
should pay they could not, if the law
We're afterwards declared unconstitu-
tional, recover their money back, be-
cause under the system of finances
adopted and in use by the said defend
ant as treasurer the moneys received
| from compliments would have been
paid out to persons having demands on
the treasury of the Hawaiian Terri
tory; that the former and present ex-
penditures of the Territory of Hawaii
are largely in excess of it's income;
that there is now a large and con-
stantly increasing deficit in sal treas
ury, and the damage to compliments
would be great and irreparable,
amounting probably to total loss to
compliments Of any sums so paid; and
that all of the complainants herein
have, as hereinbefore set forth, "A com
mon and general interest in the sub
ject matter of this action and will be
similarly affected by the results there
of, and therefore, and in order to avoid
a multiplicity of suits, complainants
join herein"
To this bill the Territory demurred
on the ground that no injunction ought
to issue, because the complainants
have a full. complete and adequate
remedy at law"
Judge Estee sustained the demurrer
of the Territory, and concerning this
demurrer, the counsel for the tax pay
ers say: 1t is perfectly evident from
the opinion of the court below that no
attempt was made to pass upon the
question of constitutional validity of
this income tax law. 1t is also per-
fectly evident from that opinion that
the case in the court below went off
solely upon the point that the COM
planants have complete and ade-
quate remedy at law.
IAN examination OF the position ia
ken by the lower court in sustaining
this demurrer will reveal what our
duty compels us to describe, but with
great respect for the court below, as
confusion of thought"
In the brief of counsel for tax pay
ers many authorities are cited to Sis
tain the position that where the legal
remedy Is inadequate or incomplete,
equity will grant relief against the col
lection of an invalid tax" and it is in
sisted that ito refuse relief in equity
upon the ground that there is remedy
at law, it must appear that the remedy
at law Is as practical and efficient TO
the ends of justice and its prompt ad-
ministration as the remedy in equi-
ty.'"
II is claimed that Judge Estee was
wrong in holding that no one of The
cOmplainants would be subjected to
more than one suit upon refusal to
pay taxes, and therefore an injunction
could not be obtained in order to pre-
vent multiplicity of suits, and the
appellants quote Professor Pomerey o.
saying:
THE weight OF authority Is simply
overwhelming that the jurisdiction
may and should be exercised either on
behalf Of a numerous body OF separate
claimants against a single party. or on
behalf OF q single party against such
a numerous body. although there Is no
common title nor community OF
right or OF interest"
Colonel Fitch concludes his argu-
ment by saying;
ANY decision ~ this court which
shall fail 20 include an expression Of
is opinion M 20 the constiutionali,y
~ the Hawaiian income tax law will
he melsurahly proiitless, both 10 the
appellants ard a. the respondent,
Tho appellants viii he satisfied IN
pay tho tax without further res,ltanee
N, IN the opinion ~ the Judges ~ this
court, tho law innlciinF II Il oonstltp'
llonal, but until there shall be IN some
way an Adjudication ~ that question
by a federal court, they VIII resist
payment
IL 10 therefore TosHerifully ursei
un0n your hOn0rs ny IN rariies that
mo public Interest IN Hawaii TefrltorY
viii hr sreally promoted N you VIII
render 4 decision, 0r ni least an 0pinr
ION upon ihe question ~ the rOnfllr
IuIlnuullIg ~ m. laN