The Hawaiian gazette., 1905-07-25
HOLT CANNOT !
COLLECT TAX.

nanueQ uoWn "a ueClsloI III the suit
brought by Tax Collector Holt against
w. c. Achi, the Kapiolani estate. the
German Savings and Loan Society and
James F. Morgan, trustee. to enforce
tax lien. Judge Robinson sustains
the demurrer TO the complaint and dis
misses the suit. holding that there was
no statute providing for it, enforce
ment at the time when the lien became
effective. The decision, in its text, fol-
lows:
This is a suit in equity to enforce
and foreclose tax liens for taxes levied
and assessed to the respondent, w. C.
Achi, upon the premises and prop
erty described in complainant's bill, for
the years 1902 and 1908.
Section 1866, Revised Laws of Hawaii
(Civil Laws No. S22) reads as follows:
Sec. 1856 Tax Liens. Every tax
due upon property shall be a lien upon
the property assessed; and every tax
due upon improvements upon real
property assessed to others than the
owner of the real property shall be
a lien upon the improvements which
several liens shall attach as of Sep
TENDER / in each assessment year and
shall continue for two years"
At no time. however, prior to the
commencement of this suit, nor at the
| time of its commencement, was there,
in this territory. any legislative enact
ment providing a means for the en-
forcement of the lien created by said
| Sec. 1866. 1t is true that at it's last
! session the Legislature of this territory
provided a means whereby the lien OF
every tax due upon property might be
enforced and foreclosed Is. L. 1905, p
211), but in no manner can this last
provision be so construed as to have a
retroactive application.
The only provisions of law. existing
at the time of the commencement of
this suit, for enforcing the payment of
| a delinquent tax, are those contained
in Sec. 1863. Revised Laws of Hawaii,
which reads as follows:
"Sec. 1863 Payment enforced how.
If any tax be unpaid when due, the
assessor may proceed to enforce the
payment of the same with all penal
ties as follows:
81. BY distress upon so much of the
goods and chattels of the delinquent
taxpayer as he may deem sufficient to
satisfy the payment of the taxes due
and interest thereon from the date
when the same became due and all
penalties and costs and expenses OF
such distress.
"2. BY suit or action in assumpsit
(sic) in his own name, on behalf of the
Territory of Hawaii, for the amount Of
taxes, penalties and costs and interest
in any district court, irrespective Of
the amount claimed. Execution may
issue upon any Judgment rendered IL
any such suit. which, may be satisfied
out of any real personal property of thu
defendant in such suit, without othe
or further authority"
This last section would seem to COM
prehend a complete and effectiv
scheme for enforcing the payment o
any delinquent tax, irrespective of thu
lien created by section 1866, even t.
the extent of selling under execution
the lands taxed and assessed, as wei
as other lands of the delinquent ia,
; debtor
{ 1t would appear from the averment
; of the bill that the complainant hat
elected to pursue the remedy provide
by subdivision of the section las
quoted, but the execution issued upoi
the judgment recovered in the form o
action therein referred to had been re
turned ''nulla bona" by the proper of
ficer Complainant now contends that
having exhau ted all of his legal RENE
dies. and the tax obligation remaining
unuischarged, he has now no plain
speedy or adequate remedy at law, an,
rightfully pursues the course which h
has adopted in this proceeding of com
ing into a court of equity, seeking t
enforce and foreclose the statutor
lien.
All of the respondents demur to tn
bill on various g.-.nds, but the mos
important question raised by the &c
murrers is whether or not statutor
lien a lien of purely statutory creation
can be enforced by bill in equity for 1t
foreclosure and the sale of the Ian
covered by IL, in the absence OF an
statutory enactment providing for ii
enforcement in that manner.
think not A proceeding to enforc
the payment of a tax, like the tax !;
self, is in invitum, and any statut
from which the power to institute an
maintain the proceeding is asserted
be derived, must receive strict cor
struction. There is nothing in Sec. 12t
r L. which authorizes the foreclo sur
in equity, of the lien therein and ther,
by created, nor is there anything cor
tanned in the statutes of this territor,
at any time prior to the last sessio
Of ha n aUfG IN WI nv n FOR