| Haw. | Jun 27, 1889
Lead Opinion
Opinion of the Court, by
The division between the 30th of June and the 1st of July was at twelve o’clock midnight. The 30th of June did not extend beyond that hour and the next hour belonged to the next day. The statute nowhere intimates that the time of liability of tax shall be at some business hour on the morning of July 1st, and that the exemptions of June extend to some hour of July 1st. So that sugar in the port of Hilo after the hour of midnight of June 30th was within this Kingdom on the 1st of July. Upon the facts stated the sugar may not have been in fact in the “possession, custody or control” of the plaintiffs. Practically it was in the hands of the captain, to whom it had been delivered for transportation abroad, from the midnight until three hours later when the vessel weighed anchor. But the liability for taxes is not limited to goods in possession. By Section 32 of the tax law at page 123 C. L., return must be made of all property “ belonging to ” or of which they had “possession, or control ” on the 1st day of July. By Section 33, every person “ owning any property ” must make return of it, describing the character and situation, etc., of the property “belonging to such person ” or “ of which such person had the possession, custody or control on the first day of July.” By Section 36, the oath of the person making his return is to the truth of the schedule of “property in my possession or owned by me.” It is clear enough from these citations that property within the Kingdom is to be taxed, and that a holding by another person than the owner will not exempt it. The government need not enquire and ascertain ownership. The property of an absent owner does not escape taxation because it is in the possession of another person. But in the case of the cargo of a ship which had just been put on board, and where the owner was well
But there is no denial of the ownership by the plaintiff, and we think the whole case justifies the assumption that the sugar was the property of and belonged to the plaintiff. If it had been sold and delivered to this vessel for transportation to the purchaser, it was for the plaintiff to so set it forth, and we shall assume that he would have done so if such were the fact.
A question would then have arisen as to who should be held liable for the tax, which does not arise in this case.
It then simply remains that sugar, the property of the plaintiff, was within the Kingdom the first day of July. Why should it not he taxed ?
It is claimed that as being in transit it should be exempt. We are referred to the case of Carrier vs. Gordon, 21 Ohio, 605, wherein timber lying within the State bad been purchased by a non-resident and was awaiting the opening of navigation to be removed out of the State. The Court say : If the property is, at the time the tax attaches, in transitu either through the State or from a point in the State to a point outside the State, it is not to be regarded as property in the State within the meaning of the statute, but as property belonging to the place of its destination ; but the Court held that the timber not having started on its journey could not be exempted on the ground of mere intention of the purchaser to move it — an intention which was subject to change. But if it is correct doctrine that property in transit from a State is to be regarded as property belonging to the place of its destination, then e converso, the cargoes of ships which have sailed before the first of July and arriving here after that date will be taxable here. We should have, for instance, the cargo of a ship which sailed from England in June taxable on its arrival in Honolulu in October or November, a proposition not well tenable under our statute.
The Ohio ease differs essentially from the one at bar in this, that the sugar was not the property of non-resident owners purchased here for exportation. When such a case arises this precedent might be considered. In Brewer & Co. vs. Tax Collector, heard by Chief Justice Judd, the jury being waived, the plaintiffs claimed to be refunded taxes on sugar shipped by them on the steamer Alameda on the 28th of June, and up to and previous to the first of July, the steamer sailing at noon of the first. The Court said : The sugar was within this Kingdom although laden in the hold of an American steamship. The sugar, though its bills of lading were mailed to the consignees in a foreign port, was, for the purposes of taxation, still in possession and control of the shipper. See 6 Hawn., 554.
We prefer to take the simple rule which the easiest interpretation of the statute gives. We have nothing to do with the honest intention of the shipper to get his property out of the way of taxation. If he is able to do so by however narrow margin of time, he has the benefit of his diligence. If his intention is defeated by however narrow an entry upon the time belonging to the first of July, he may be assessable. We are unable to see wherein the Custom House clearance or re-entry affect the question of liability for domestic taxes, as being property within the Kingdom, for they do not change ownership, or for taxation purposes, possession.
Concurrence Opinion
Concurring Opinion ok
The question before the Court is, whether the property in question had a situs within the Kingdom for taxable purposes. It may fairly be implied, as stated by the Opinion of the Court, that it belonged to the plaintiffs.
I should have cheerfully followed the majority of the Court had they seen their way to have decided the case in favor of the plaintiff's, under the authority of Hoyt vs. The Commissioners of
The laws in New York and Ohio are identical with ours, so far as this point is concerned. “All lands and all personal estate within this state * * * shall be liable to taxation.”, (1 R. S., N. Y., 387, Sec. 1.) “All property, whether real or personal, in this state * * * shall be subject to taxation.” (1 R. S., Ohio, Sec. 2731.) “All personal property within this Kingdom, not subject to specific taxes, shall be subject to an annual tax of one per cent.” (Hawn. Laws of 1886, Chap. XXXII.)
It will be seen that the opinion in the case of Carrier vs. Gordon, above quoted, exactly fits the case before the Court. The circumstance of the sugar belonging to resident owners does not affect the case under our law or either of thé laws above quoted; the property is liable to taxation if it is within the Kingdom on the 1st day of July, regardless of the residence of the owners. This sugar started for its destination (San Francisco) on the 30th day of June, and the vessel upon which it was shipped was compelled by unfavorable winds to anchor again, and to remain at anchor until the morning of the first
I feel that these cases lay down a convenient rule, and one entirely within the statute. The case of Brewer & Co. vs. Tax Collector, even if it had been decided by the Full Court, would not have controlled the case at bar, the circumstances being different, in that the vessel on which the sugar had been placed had not left her moorings before the first day of July.
At the same time, the construction of the law adopted by the Court is, I think, conformable to the statute; the question between the two views is one rather of policy than of exact law. Feeling, therefore, that the Court was at liberty to adopt the rule laid down in its opinion, I very reluctantly concur therein.