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


may superintendent
q public permission prem
the public enforceable decision in
Territory v. Brcon 10 Iiaw. prior
tsoc 1886 r. IJ.
statement the defendant of
that the prosecuted he
did not connect with the
CoNn,>crs-defcnse of 1egaliy arduabe
having permission his
ires with the public his promise to the rates
having paid them for and half without protest and
stepped payment without any claim that the rates were Illegal
having continued the his premises is not
position the ilegaIty the the unconsi
0'o"a OPINION OF ' THE COURT BY HARTwEi CO.
This action brought in the district court of Homo
lulu May II, 1909, $1 "for unpaid rates
from January 1903 to June 80, 1909, for of plain
H's during said time in Maunakea street in said lo
noulu in connection with the premises owned and occupied
by defendant at the emiannua rate of So and which said
defendant promised and agreed pay" the plaintiff
claiming that there due from defendant "by there
of said of $l7 together with ten per cent 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 deense of
duress failure of consideration and the statute of limitations
claiming that his with the superintendent of public
works of June B. 1901 "o pay such rates annually for the
of the may be fxed not voluntarily made
but forced upon him by the necessity of obtaining per-
mission to connect his premises with the public in order
to avoid the penalty imposed by regulation of the board of
health if he should discontinue of prvy vaults and
cesoos and transform the into approved watercosets
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 the grounds that
the delegation of legislative power that the rates
in the of a special made with
opportunity for him be heard concerning them, and
also because interest bonds and expense of maincn
and repair of the the basis of which taxes
fixed under the act, provided for by general appop
aons which the defendants general had contributed
1t appeared by the def ndons evidence that in June 1901
he had built and pumbcd lodging house anakea street
in Honolulu and wished to make cesspoo for the premises
but upon being told by inspector of the hoard of health
that if he did this he would be prosecuted for nuisance and
to the superintendent Of public works given tsrTby the
plumbers in the form referred to in Territory Br0wa, 10
law Al, for permissim ttAconnet with the public sewer
agreeing therein o pay such rates annually for the use OF the
shall be fixed" His premises then connected
with the and until December 81 1902 he paid the rates
which fixed at 50 scmiannuay and then stopped paying
because he SAYS he wanted to have his c,sspoo
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 his premises with the
made upon his being told by the health officer that
otherwise he would be prosecuted for nusncc 1t true
that ccspoo drainage in that locality might hays been nlis
ance and hence the defendant acted wisely and not under
illegal coercion in avoiding the risk
Under the decision in TERRITORY V. BIOwH, 10 llaw II,
which is not before for consideration dc novo the
enforceable for rates fixed prior to the act of
1904. IS -, or ~ r 4
If the act institutional any of The grounds
ed by the defendant, ten'thc fixed hereunder could
lawfully be required of the defendant if he in position
assert such llcsay and enforce claim to be exempt from
paying them by thereof. '
The consideration OF the agreement was 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
prations which his general had contributed But
if this true the fact remains that he received the
benefit of the permission with the without
asserting the claim that he entitled do this without
permission, and the consideration, which is illegal
lawful of this benefit received by him remains. His pay
of without protest for year and half stopping
payment for other ayowcd than because he prefer
red cesspoo drainage and his continued of the do
not leave him in position this late day dispute the
legality of the rates fixed under the statute of 1904 the
validity of the Statute under which they fixed his
Uses having meanwhile received the benefit of drainage
and he having avoided the risk of prosecution for nuisance il
he had made cessroo and undertaken dispense with the
sewer.t ,on 2UInC t'H ~ So
1t every who intepose constitutional OBJ
iections statute The rule volcn fit njura is some
times applied in such being another way of stating the
position of wose acquescence in the operation of statute
precuds him from afterwards cycusng nopcrformance of
acts required by it the ground of its unconsmtionaly
The acqueccnce in this may be inferred from the de-
fenans conduct If he had seasonaby made the objections