The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-10-22


On application of both Attorney
General Dole and Colonel Thomas
Fitch the United States Court OF, APP
peals at San Francisco has forwarded
The income tax case upon its calendar
and agreed to hear it upon November
10th, so that decision may be reached
before any proceedings shall be insti-l
tuted against delinquents. Alex. Rob-
srtson sailed on the Sonoma yesterday
and will appear for the Territory at
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; demurrer was interposed
upon the ground that compliments 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 compliments any oppor-
tunity to amend, summarily dismissed
the bill outright, instead of without
prejudice Hence this appeal
"The bill was filed by some sixty OF
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 complainants
should pay they could not, if the Law
were 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 scomplainants would have beer
paid out to persons having demands OF
the treasury of the Hawaiian. Terri
tory; that the former and present ex
penditures of the Territory of Hawai-
are largely in excess of its income
that there is now a large and con
stantly increasing deficit in said treas
ury, and the damage to complainant
would be great and irreparable
amounting probably to total loss Il
compliments of any sums so paid; ant
that all of the complainants herein
have, as hereinbefore set forth, com
mon and general interest in the sub
ject matter of this action and will b,
similarly affected by the results there
OF, and therefore, and in order to avoiC
multiplicity of suits, complainant,
join herein.
To this bill the Territory demurrer
on the ground that no injunction ough
to issue, because the complainant
have a full. complete and adequate
remedy at law"
Judge Estee sustained the demurre
of the Territory, and concerning thi
demurrer, the counsel for the tax pay
ers say; 1t is perfectly evident from
, attempt was made to pass upon tn,
! question of constitutional validity 0
/ this income tax law. 1t is also per
fectly evident from that opinion tina
the case in the court below went OF
solely upon the point that the com
piainants have a complete and ade
qHate remedy at law
! An examination of the position ia
ken by the lower court in su3tainin,
, this demurrer will reveal what on
, duty compels us to describe, but witt
great respect for the court below, a
confusion of thought"
! In the brief of counsel for tax pay
ers many authorities are cited to sns
tain the position that where the lega
! 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 equit,
upon the ground that there is remed,
! at law, it must appear that the remed,
at law is as practical and efficient t.
the ends of justice and its prompt ad
ministration as the remedy in equi
| ty'"
1t is claimed that Judge Estee wa
wrong in holding that no one of III
! compliments would be subjected t
more than one suit upon refusal t
pay taxes, and therefore an Injunction
could not be obtained in order to pre-
vent multiplicity of suits, and tn
appellants quote Professor Pomerey q
saying:
The weight of authority is simpl
! overwhelming that the jurisdiction
may and should be exercised either o.
i behalf of a numerous body of separat