The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-01-15
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the lllteTlOI-llOt W 20 llltO tHe question:
whether the subject of a Territorial
penitentiary itself could properly be in
cluded in the Act or how far the mat
tiers OF prisons, criminal procedure; sem
fences, etc, in general might be affected
by the failure of the provisions in qres-
tom; or because they purport to alter
laws that cannot be altered at all by the
Territorial Legislature, the power to
alter which is reserved exclusively to
Congress by the Organic Act Gas, for
instance Sections 17I-I7a, 45o-45I, re-
lating to the settlement of boundaries
and the returns, canvass and certificates
of election i'll the case of Territorial
Senators and Represcntatives-not to
consider whether the latter subject could
properly be included in county act at
alb; or because they violate provisions
of the Organic Act or other Acts of
Congress relating to the Territories pro-
hbiting special legislation in regard to
counties, as, for instance. the proviso
of Section 1 relating to the County of
Kalawao and Section ii relating to the
Supervisors of the County of Oahu.
But we will assume for the purposes
OF this case either that all such pro-
visions are valid and effective, except so
far as held otherwise in the cases above
mentioned, or else, that, if invalid or
ineffective, they may, important though
some of them are, all fall without caus-
ing the Act as whole to fall
There is, however. one subject that
in our opinion, is improperly included in
the Act, without the provisions in re-
gard to which it cannot be presumed
that the Legislature would have passed
the rest of the Act. That is the subject
OF Territorial taxation-the very means
upon which the Territorial government
depends for its life We will assume
that the Territorial Board of Equaliza-
ton might properly be constituted as it
is in terms by this Act, Notwithstanding
the provisions OF Section 80 of the Or
ganic Act. Still the subject of Terri
torial taxation is one that, like the sub
ject of the Territorial Board of Public
Institutions, cannot be included in the
Act, in view of the provisions of Section
As OF the Organic Act relating to titles
of laws.
The Act makes radical changes in the
system of Territorial taxation. 1t may
almost be said to provide new system.
Among other things, it provides for the
equalization of valuations of real prop
erty among the several counties, as far
as regards the Territorial tax, by a
purely Territorial Board. This board
also is required to determine the rate
of the Territorial tax upon both real and
personal property, and in case of its
failure to do so, the rate is fixed at
FIVE mills on the dollar. Sections 1856,
221. 22e.
The Act is entitled az Act Providing
for the Organization ant Government of
Counties and Districts md the Man
agement and Control OF Public Works
and Public Institutions herein" An
Act relating to taxation c. uld cover both
Territorial and county taxation. Wheth-
er an act relating to Territorial govern
ment could properly cover county gov
eminent, or an act relating 10 Terri
torial taxation could properly cover
county taxation might be a question
although under an act which according
to its title related to state and county
revenues. but which contained section
on municipal revenues, the Supreme
Court of Tennessee held not only that
section but the entire act void. See
Bugher VS.. Prescott, % Fed. 90 But
an act relating to county taxation or
county government could not cover Ter
ritorial taxation. No doubt number
OF provisions in this Act could be sus-
tanned, not as parts OF the Territorial
system OF taxation but as incidental to
county government, although they relate
more or less to what were previously
parts OF the Territorial system of taxa
ton. An act relating TO counties Gre
ated in fully organized Territory with
a centralized government would natural
ly and probably necessarily contain some
such provisions. Lines of demarcaton
and transfers would have to be made
and this could be done by inclusion, ex-
clusion, amendment or repeal so far as
necessary for the purposes OF providing
for the organization and government of
counties. But this Act goes much fur
ther than this. 1t provides for most
important changes in the system OF Ter
ritorial taxation, and that, too, with
nothing in the title OF the Act to indi-
cate this.
What is the result? The provisions
relating to county and territorial taxa
entire Act, are interviewer, and were in
tended TO be parts of general scheme.
If the part relating to county taxation
would have to fall with the part relating
10 Territorial taxation, the counties
themselves would be without the greater
portion of their contemplated means of
subsistence and the entire act would
necessarily fall. II the part re-
lating to Territorial taxation could
be separated from the part relating
to county taxation, then, if the
rest of the Act could stand, it would be
only on the theory that, as to Territorial
taxation, previously existing laws would
remain in force. There would then be
two systems of taxation, each complete
in itself, with two sets of officers and
other machinery from top to bottom,
with double expenses, two returns, as
sessments, etc, to be made in the case
of each taxpayer the possibility of two