The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-07-22
HOL I CANNOT
COLLECT TAX
Judge Robinson Hands
Down important
Decision.

Yesterday afternoon, Judge Robinson
handed down a decision in 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 its enforce
ment at the time when the lien became
lows:
This is a suit in equity to enforce
and assessed to the respondent, w. c.
Achi, upon the premises and prop
erty described in compliments BILL for
the years 1902 and 1903.
Section 1866. Revised Laws of Hawaii
Civil Laws No. S22) reads as follows:
''Sec. 1866. 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 l 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 it's commencement, was there,
in this territory, any legislative enact
tnent providing a means for the en-
forcement of the lien created by said
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
21D, 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. 1869, Revised Laws of Hawaii,
which reads is 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:
4. 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.
-. BY suit or action in assump sit
(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 in
any such suit. which may be satisfied
oot VI an iCc'l DtI SoIldl property VI lliG
defendant in such suit, without other
or further authority
This last section would seem to COM
prehend a complete and effective
scheme for enforcing the payment OF
any delinquent tax, irrespective of the
lien created by section 1866, even to
the extent of selling under execution
the lands taxed and assessed, as well
as other lands of the delinquent tax
debtor.
1t would appear from the averments
OF the bill that the complainant had
elected to pursue the remedy provided
by subdivision of the section last
! quoted, but the execution issued upon
the Judgment recovered in the form of
action therein referred to had been re-
| turned 'nulla bona,'' by the proper Of
fcer. Complainant now contends that
having exhausted all of his legal RENE
dies, and the tax obligation remaining
| undischarged, he has now no plain.
: speedy or adequate remedy at law. and
rightfully pursues the course which he
has adopted IN this proceeding of COM
ing into court of equity, seeking to
enforce and foreclose the statutory
lien.
All of the respondents demur to the
bill on various g--rnds, but the most
important question raised by the de-
murrers is whether or not a statutory
lien lien of purely statutory creation.
can be enforced by bill in equity for its
| foreclosure and the sale of the land
covered by it, in the absence of any
statutory enactment providing for its
enforcement in that manner.
| I think not A proceeding to enforce
the payment of tax, like the tax it.
, self, is in invitum, and any statute
/ from which the power to institute and
maintain the proceeding is asserted to
| be derived, must receive d strict con-
| strUction- There is nothing in Sec. 1866
r L. which authorizes the foreclosure
in equity, of the lien therein and there
by created, nor is there anything con-
+. tanned in the statutes of this territory
! at any time prior to the last session
! Of the Legislature. to which nv atten-
. ton has been called. which authorizes
or even Justifies the complainant in
| bringing this suit.
| A tax lien is purely and simply ore