Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1910-11-29

-durcss--Seror rates
The defendants pay annually
use of the with the superintendent
Ct public works permission
iscs with the public enforceable decision
Territory " Brccn 10 Haw. prior
of 1904 scc 1896 r. 3D. by
statement to the defendant by an inspector of the board of
health that the If he
did not connect with the
Commentators of ucgdlhy araidbrc
The defendant having obtained permission his
Uses with the public his promise the rates
and having a year a without protest
stopped payment without that illegal
and having continued the the his premises is not
in position the iegaty of the rates the uncons
OPINION OF 81 THE COURT BY Tf HARTwE G CO.
This action brought in the district court of Homo
lulu May A. 1909, $17 "for unpaid rates
from January 1908, june 30, 1909, for of plain
tiHs during said time in Maunakea street in said Io
noulu in connection with the premises owned and occupied
y defendant at the cmiannual rate of 3d. and which said
rate defendant promised and agreed pay" the plaintiff
claiming that there due from defendant y there
of said of $17 together with per penalty there
fixed by law The defendant appealed the circuit court
from the judgment in the of 1926 and costs and the
ties waving jury the defendant presented the deese of
dures failure of consideration and the statute of limitations
claiming that his agreement with the superintendent of public
works of June 3, 1901 "to pay such annually for the
of the may be xed not voluntarily made
but forced upon him by the necessity of obtaining per-
mission his premises with the public in order
to avoid the penalty imposed by regulation of the board of
health if he should discontinue of pvy vaults and
cesspools and transform the into approved watcrcocts
connected with the system The defendant contends
that rates fixed by the superintendent prior the act of April
1904 (Sec 1886 r. ) without Legislative sanction and
that those fixed under the m gal the grounds that
the delegation of legislative power that the rates
in the nature of special tax assessment made with
opportunity for him be heard concerning them and
also because interest bonds and expense of maincn
and repair of the sewer the basis of which
fixed under the act provided for by general apropr
aions to which the defendants general taxes had conribu
1t appeared by the defendants evidence hi 1901.
he had built and pumled lodging house Maunakea street
in Honolulu and wished make cesspoo for the premises,
but upon being told by inspector of the board of health
that if he did this e would be prosecuted for nuisance and
that he must with the he signed the application
to the superintendent of public works given to him by the
plumbers i'll the form referred to in Territory Brown, ~
aw Al, for permission to connect with the public sewer
agreeing therein pay such annually for the of the
shall be fixed" His premises then connected
with the and until December 81 1902 he paid the
which fixed 50 cmiannuay and then stopped paving
because he SAYS he wanted to have his csspoo
and satisfied with the
There is evidence that the defendant made the agree
for payment of rates from fear of being held liable
for the penalty under the regulation of the board of health for
his application for permission to connect his misses with the
sewer was made %GRH hS being told by the health officer tina!
that ccpoo drainage in that locality might have been NUS
and hence the defendant acted wisely md pot under
illegal coprcion in, PYoi,ps thelrisi
Under 1.-THE decision in TERRITORY V. BIOwn 10 llaw. H.
which cae is not before for consideration de the
agreement enforceable for rates fixed prior the act of
1904. fr..a'
If the act unconstitutional any of the grounds assert
ed by the defendant hen thesre fixed hereunder could not
lawfully be required of the defendant if he in position to
such llegay and enforce claim to be exempt from
paying them by thereof.
The consideration of the agreement the permission to
with the The defendant claims that he
entitled to the without payment its construction
and maintenance had been provided for by territorial appro
pratons to which his general taxes had contributed But
even if this the fact remains that he received the
benefit of the permission with the without
asserting the claim that he entitled to do this without
permission and the consideration, which NOT illegal I'M
lawful of this benefit received by him remains. His pay
of rates without protest for year and half stopping
payment fot other aowcd reason than because he prefer
red csspool drainage, and his continued of the do
leave him in position this late day to dispute the
legality of The rates fixed under the statute of 1904 the
validity of the statute under which they fixed, his prem
having meanwhile received the benefit of drainage
and he having avoided taa Risk Of r6scc9fr nuisance if
he had modd ,are ppdsaana5 dispense WIN the
sewer. i IlIf.r 9hVOAV g
1t is not every who nterpose constitutional OBJ