The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-12-30
RAIL WAY VS.,
PLANTATIONS
Defendants Think
Supreme Court
Mistaken.
Present Their Grounds
for Rehearing and
Reargument.
Order Of Default New Lawyer
Licensed Motion for New
Trial Denied.

The Eva Plantation Co. and the
Kahuku Plantation Co. are not salts
fed with the decision of the Supreme
Court on the submitted case between
the Oahu Railway & Land Co. and
themselves. BY their counsel, Castle
& Wilmington, they petition the court
for a rehearing. i
Their ground for rehearing and re-
argument is that questions decisive of
the case and duly submitted by their
counsel have been overlooked by the
court and that the decision is in con-
fiict with express statutes to which the
attention of the court was not drawn"
The petition specifies its particular
grounds reciting what the court found
as to three interests to be taxed, name
ly: that of the original lessor, that of
the lessee (the lessor in the new leases
and that of the sub-lessee, all to be
paid by the sub-lessees respectively,
quoting then from the decision the fol-
lowing passage:
1T is no defense that the taxes were
not assessed upon the sub-leased por-
tons of land separately. The private
agreement of the parties was not bind
ing upon the assessor and the latter
was under no obligation to make a
separate assessment by reason of such
agreement"
On this the petitioners comment:
1.-THE court has clearly overlooked
the point made in our brief, that the
Co. in each of the demised premises
is a separate item, and as such is to
be separately taxed. We did not con-
tend that the agreement to pay taxes
had any effect upon the method of
assessment, but that if any taxable in
terest in the demised premises was left
or created by the leases, such interests
were separate items, and under the
provisions of the tax law must be sep
arately taxed, which was not done,>
and therefore no valid tax was laid on
the demised premises and we were
not obligated by the agreement to pay
| anything but valid tax"
| The petitioners further say that the
| court has, in their opinion, over
looked considerations suggested by
them decisive of the case in it's find
| ing that the agreement concerning
I fax fn11y tn ,oI, k0.
obligation on the part of the planta-
ton companies to pay a tax on the
railway company's interest in the de-
missed premises and that the railway
company has an interest in the de-
missed premises subject to taxation.
The considerations alleged to have
been overlooked are thus presented:
Our point was not, as stated by the
lcourt, that the instruments are not in
reality leases, but merely contracts to
establish sugar plantations. What We
icontended was that, while the instru-
ments were technically leases, the pur-
pose of the parties was primarily to
establish sugar plantations, and that
the instruments should be construed
with this purpose in view.
I'VE did not contend the petitioners
continue, that the agreement relating
to taxes was not a covenant. What
we contended was that it was not in
the technical form of a covenant and
was portion of a general covenant to
establish sugar plantation, and that
that fact should be taken into consid-
ertion, and when considered it APP
peared to be a provision relating to the
method of computing the share of the
profits, and not primarily covenant
to pay the taxes.
THE court seems to us to have over
looked the fact that there was nothing
in the case which showed that there
was any excess of rents to he en-
joyed by the lessee. This latter may
not, however, have been decisive of the
case.
, I'VE respectfully submit that re-
hearing should be granted at least up
on the first point
COURT NOTES.
Judge De Bolt has signed an order il
default against defendants in the as
sumpsit suit of IS. F. Vickers VS.. Rob.
ert A. and Frederick A. Garlic. Rob
ertson & Wilder for plaintiff made the
y motion.
w. r. Sims, J. S. Walker and George
Lucas, appraisers of the estate of DR.
Alex. NJ. Atherton, decea sed have filed
their report. being practically con
firmation of the inventory filed by c
H. Atherton, executor.
David Watson was licensed yester
day by Judge Robinson to practice Law
in the district courts and before cir
cult judges at chambers on appeal, fo
the term of two years.
Judge Robinson denied the motto,
for new trial fled by defendant t.
the case of Cecil Brown VS.. j. w
Redhouse.