5 Haw. 520 | Haw. | 1886
Lead Opinion
Opinion by
In order to entitle a petitioner to a writ of mandamus, it must appear that the respondent is clothed with' some legal duty. The object- of the writ now sued for is to obtain a tax receipt impressed with the words “ Qualified to vote, ” the production of which at the polls at the coming general election for representatives of the people is one of the essentials to enable the petitioner to cast his vote. Section 10 of the Act of 1868 (Compiled Laws, p. 224-5)' clothes this respondent, as Tax Collector for the District of Honolulu, with the duty of filling out and delivering to every person entitled to vote a tax receipt so impressed. The qualifications of the petitioner to vote are not questioned by the answer. But the respondent avers that he has made out and delivered the petitioner’s tax receipt to the commanding officer of the volunteer corps, << The Queen’s Own,” of which petitioner is an enrolled member. Is this a discharge of his duty in this respect ? I think not. From the tenor of the answer it would appear that for convenience, or to ensure identification of the individuals in the volunteer corps, the respondent made the captain of the corps his agent to deliver the receipt to petitioner. This the agent has not done, though the receipt was filled out ready for delivery on or soon after the first day of November last. The principal is responsible for the acts of his agent, and is answerable tor his neglect to deliver the receipt. He cannot in this way evade the express duty which the law explicitly casts upon him, and upon him alone. The agent is presumably under the control of his
I deem the cause shown to be insufficient, and think that a peremptory mandate should issue to the respondent that he deliver the tax receipt in question to petitioner on or before 12 o’clock m. on Tuesday, the 26th instant, and pay the costs of these proceedings.
Concurrence Opinion
Concurring Opinion op
Everything governing the decision of this case is to be found plainly expressed in our statutes.
By Section 10 of the Act of 1868, regulating “ Qualifications of Electors,” found at page 222 of the Compiled Laws, it is made the duty of every tax collector, upon receiving the payment of the taxes from any person who is qualified to vote, to fill out and deliver to every such person a tax receipt bearing the words « Qualified to vote.”
The petitioner, as a volunteer soldier, actually enrolled and doing duty, is exempt from the payment of one description of taxes, viz., personal taxes, by Section 67 of the Tax Law, page 181, Compiled Laws. This exemption must be taken as a privilege in respect to the liability of payment in consideration of certain gratuitous public service, and therefore it is not to be held that it is accompanied by disfranchisement in the cases where the party has no property tax to pay, and so obtains no receipt for the payment of taxes. The statute provides for a sworn list to be presented to the assessor by the commanding officers of the companies of the persons entitled to such exemption. Then, in words of the statute first cited, the tax collector must deliver to every such person one of the tax receipts so impressed.
The return of the respondent, which is not traversed, is that he has issued such tax receipt, delivering it with those belonging to the other members of the company to the captain. It is plain that this is not the delivery required by the statute, which is a delivery singulariter, to “ every such person,” to each person man by man. The return states that the delivery in a block was made for convenience, and in accordance with previous usage. Certainly neither of these affect the force of the statute. It must
I concur in the order made by the Court.
Concurrence Opinion
Concurring Opinion on
It is conceded by the return to the writ of mandamus that the applicant is an elector, and entitled to vote at elections for representatives to the Legislative Assembly. The tax collector says he has given the applicant’s certificate to the captain of the “ Queen’s Own,” the corps of which the applicant is a member. And it is contended by the Attorney-General on behalf of the respondent that this is according to usage and a compliance with the law.
I cannot agree with this contention. The law casts the duty upon the tax collector to give the certificate to the voter entitled thereto, and it seems to me the respondent cannot relieve himself of the responsibility by delivering the certificate to a third person. If he does so deliver it, I agree that such person is the respondent’s agent, and that he has control over such agent. If it be true that the respondent does not know the elector personally, it is his duty to take proper means to have him identified and then deliver to him the certificate.
The question as to how the respondent is to obtain the certificate is not for this Court to consider; he must deliver a certificate to the applicant according to law.
I therefore agree with the Chief Justice and my brother McCully, that a peremptory writ of mandamus should issue.
