The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-04-15

FOR Booth.
(From Thursdays Advertiser)

| (From Thursdays Advertiser)
c. W. Booth wins his water taxes
case by a ,..ajority decision of the STU
preme Court Chief Justice Frear
writes the controlling. and Justice Per-
ny concurring opinion, while Justice
Gabraith files a dissenting opinion.
Booth returned nearly fifty pieces of
kula. taro, pasture, vegetable, moun-
famous and residence lands in Pauoa,
Honolulu The, assessor increased a
number OF the valuations. The Tax
Appeal Court sustained some and not
others Of these increases. Former AS
SCISSOR Pratt added a new iten-"two-
thirds water rights auoa valley, $780,
ooo," which the Tax Appeal Court dis
allowed, whereupon the assessor brought
the appeal now decided. Robertson &
| Wilder appeared for the assessor; ]. A.
Magoon and ]. Lightfoot for the tax
payer.
The syllabus of decision reads as fol-
| lows:
"If land with water rights ap-
purtenant thereto and used solely in
connection Herewith, is assessed in full,
including whatever added value it has
by reason of such water rights when
used solely in connection Herewith, such
water rights cannot be further assessed
apart from the land as to the whole or
part of their value, even if they may
1a For nthar thar,
when used in connection with the lands
to which they are appurtenant, and even
if the land with such water rights might
have been assessed higher because of the
other purposes to which the water could
could be assessed separately if they had
not been included in the land"
THE COURTS REASONING.
Referring to the bill that passed the
Legislature but was vetoed by the Gov
ernor, providing for the purchase of the
Pauoa water from Booth for $4,000,
the Chief Justice, in affirming the judg-
ment of the Tax Appeal Court, says
THAT the entire value OF the water
rights alone was not 100000 is clear.
If we leave out of account the Gov
eTllOT SlIOllS CONCENTRATION VI lllC
proposed bill in his veto message and
other circumstances that tend to weaken
the evidence adduced i'll support of the
valuation contended for, and assume
that all the evidence was not only adj
MISSILE but entitled to consideration at
its face value, still the proposed appro-
priaton was not for the purchase, for
100000, of these two-thirds of the water
rights, which were available only in
small fractions on many different par
ticular lands at many different fixed
times, but was for the purchase, for
$4,000, of all the water rights with
complete control and the power to use
the water when and where and in what
quantities desired, also for rights of way
for pipe lines and for reservoir sites,
and the sites of the springs, with the
right to increase the outflow by tunnel
ing or otherwise, and all for the purposes
of the city water supply, to which use
no private purchaser could put the
water"
Justice Perry reasons at length that
the legislative opinion, taken at its full
effect, is not evidence that the water
rights in question are worth 100000.
THE DISSENTING OPINION.
Justice Galbraith, dissenting, makes
the following among other observations
1T is not denied that the taxpayer
made a vigorous effort during the ses-
sion of the Territorial Legislature COM
mencing on February IS, Ioo3 and
closing April rs, 1908, to effect sale of
his rights in the water of these two
springs for $4,000, and would have
succeeded in so doing but for the veto
of the Governor and the failure to con-
troll the votes, lacking one, in the SEN
ate necessary to pass the measure over
the Governors veto. In the absence of
any evidence to the contrary the as
SCISSOR had right to assume that the
taxpayers interest in this water privilege
was as valuable on the first day of
of the legislative session in April prior
thereto Acting upon that presumption
he had right to place the valuation
of 100000 on this property, the same
valuation placed thereon by the taxpayer
when he wanted to transfer it to the
public"
1t is held by Justice Galbraith that
the claim that the value of the springs
WAS llCluQcu III lIdl OF tlle lalQS Is
proved an absurdity from the fact that
the sum of the valuations approved by
the Tax Appeal Court is only $43,75o.
In his opinion the assessor should be
commended for taking the taxpayer
seriously in his dealing with the Ter
ritory through its legislature and he
says the court has no right to presume
such perfidy on the part of the legisla-
tive assembly as the contention OF the
taxpayer implies" Nearing his conclu-
sion that the assessor had a right to
assess the lands and water, using the
best information at his command and
that the valuation placed thereon OF
SI4a,7so ought to be Sustained, Justice
Galbraith makes these remarks;
by his conduct MIR Booth has rem
dered It entirely unnecessary Tor this
court 10 speculate or 10 attempt TO APP
ply some set rule to the facts in order
10 ascertain the full cash value Of this |