The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-03-06

W0RSTED.

Seattle Brewing & Mailing Co. has
won an important point in its suit
against A. j. Campbell, Treasurer or
, the Territory, to recover back 5000 IL
cense fees for the two years beginning
July /. 1903 and 1904 respectively. and
$3.50 penalty for previous nonpayment
of the license fees, which sums were
paid under protest by the piaintiif To
the defendant on March 25, 1905. upon
the latter's demand for immediate pay
ment thereof, under Section 1925 of the
Revised Laws.
The section just mentioned outlaws
any foreign corporation. other than in
surance, which does not invest and use
! its capital in the Territory, unless 1t
! shall first have obtained from the
Treasure: an annual license TO 10 bust
ness In the Territory, for which IL
cense II shall pay into the treasury
one-fourth of a mill on each dollar OF
its capital stock which II is authorized
to have. but not less than $3.50 in any
case. There is IA penalty of 80 per
centum for failure to pay the fee. Also
there is an exemption from the re-
quiioment OF a license of any corpora
ton engaged In the business of foreigR
or interstate commerce or employed by
the government of the United States.
The outlawing of delinquent cor
poratlon by the statute consists in for
bidding 1t to have an office in the Ter
ritory and shutting 1t out from all
benefits OF the Territorial laws.
In this case Seattle Brewing & Malt
ing Co. alleged that 1t was foreign
/ corporation organized under the laws
of West Virginia and that during the
period in question 1t invested and used
its capital in this Territory and was
engaged in the business of foreign and
interstate commerce. II also alleged
that II made the payment under pro-
test In writing, contending that It was
not liable because II was not one OF
the foreign corporations to which the
statute was applicable, and was en-
gagged in the business of foreign and
interstate commerce. Further, it de-
clared that. on making its protest, 1t
notified the defendant that II would
institute suit to recover the money so
paid under protest.
demurrer was entered by the de-
PENDANT, contending that the action. II
II lay at all, should be brought against
the Territory and not against the
Treasurer and that in any event no
recovery could ,be had because the
payment was voluntary and not under
duress.
An interlocutory order was made by
the Circuit Judge overruling the de-
murrer, and from that order exceptions
We're taken to the Supreme Court. A
unanimous opinion of that body writ
ten by Chief Justice Frear, overrules
a n
appeared for the plaintiff. and Depu-
ty Attorney General M r. Prosser,
with Attorney General f. c. Peters
on the brief. for the defendant.
IF the defendant had paid the
money into the Territorial treasury"
the opinion SAYS with regard to the
Treasurer's liability, land was justi-
fed in doing so and the action were
against him in his official capacity for
the purpose of reaching such money
in the treasury, 1t would be a mere
ruse for an action against the Terri
tory and, If 1t would lie at all against 4
him nominally, I'm order to reach the
Territory really, 1t would have to be /
brought In the Supreme Court liksi
other actions brought against the Teri
rtory by its consent, and payment OF
the judgment II the action were sus-
tanned would have to await an appro-
priation by the Legislature"
Following is the syllabus of the
courts opinion:
IAN action may be maintained
against the Treasurer of the Territory
In his private capacity to recover
money Illegally exacted by him under
color of his office and paid under duress
and protest and with notice that ac-