16 Haw. 396 | Haw. | 1905
Lead Opinion
OPINION OF THE COURT BY
(Hatch, J., Dissenting.)
The appellant’s counsel have correctly stated the question in the case, viz.: “Is, this property within the Territory for taxation purposes under the statute which with certain exceptions not in this case declares that all “real and personal property within the Republic” (which by section 9 of the Organic-Act must be read “within the Territory”) “shall be subject to an annual tax of one per cent, upon the full value of the same.”' Sec. 817, C. L. The appellee’s counsel do not expressly admit although their argument practically concedes that when Hawaii-was a sovereign state this statute would have authorized its taxing submarine cables on the high seas between low water mark and within the three mile zone of the surrounding waters. They claim, however, that Hawaiian decisions under the monarchy are not in point both because Hawaii then held all' the power over the adjoining waters of an independent nation, and also because the cases referred to property of residents of
The argument of the appellee is based largely upon the decision in Regina v. Keyn, 2 L. R. Ex. Div. 63 (1876), in which six of ‘ the judges, including Coleridge, chief justice of the common pleas, Denman, Brett, Bindley, Amphlett and Grove, forming the minority of the court, were of the opinion that the realm of England included the three mile zone outside of the low water mark ..along the coast. The majority of the court, namely, Coekbum, chief justice of England, Kelly, chief baron of the exchequer, Phillimore, Bramwell, Pollock, Bush and Field, held the direct opposite. Kelly and Pollock also thought that the national control over the three mile limit was for certain limited purposes only and that those purposes did not authorize the application of English criminal law within those limits. All of the minority judges thought that the three mile belt was English territory and that English criminal law extends over i.t; also that admiralty had jurisdiction of offenses committed therein,' whether on foreign ships or not. Gould says of this decision that “it is not certain how far it may be approved in this country.” Gould on Waters, See. 13.
Woolsey -says -that the territory of a state includes, besides the .terra firma within its boundaries, the waters of the interior seas, lakes 'and rivers wholly within the same lines, the mouths of rivers, bays and estuaries furnishing access to the land and “the .coast sea to the distance of a marine league.” Modern writers, he says, “agree substantially in making it” (a marine league); “an incident, to, territorial sovereignty on the land.”
If we admit that the English law as held in the Keyn case applies to the space outside of low water mark in Hawaii with the exception, we will say, of the space within the outer fringe of reefs, which practically is land-locked, the conclusion does not follow that property of a resident in Hawaii is exempt from taxation which lies within that space and outside of the reef line. On the other hand, in accordance with the minority opinion ‘in that case, as well as with the views of many eminent publicists, the island of Oahu would properly include for purposes of territorial taxation its surrounding waters to the extent of the three mile limit. The importance of this question to the Territory is obvious, for if the Territory has no jurisdiction for taxing purposes over this open sea limit it may have none for the punishment of territorial offenses committed within that space, or for service therein of civil or criminal process. Whatever is true of the outer portion of that limit would also be true of the inner portion as far as the low water mark. As suggested by appellant’s counsel, the doctrine contended for by the Cable Company would enable any resident who wishes to
Tbe cables are not real property within the meaning of the tax laws. The appellee would not admit that the state could claim them, nor would a claim to them be made by the state on any theory of the law of fixtures. Telegraph and telephone wires are treated in some instances as personal property, although affixed to poles set in the ground. Newport Co. v. Assessors, (R. I.) 6 Am. El. Cases 659; Water Co. v. People, 140 Ill. 545; People v. Assessors, 39 N. Y. 81. It is evident, however, that the valuation of $42,800 made by the assessor for the six miles of the two cables within the three mile limit was excessive. The invoice price, as shown by the exhibits, is $12,833.87, on which duties were paid of $5,579.58, aggregating $18,413.45. We do not know the “life” of submarine cables, but assuming it to be twenty years, there would be an annual depreciation of five per cent. We think a deduction of ten per cent, from the cost price would be appropriate, leaving for taxable value $16,572.10.
Dissenting Opinion
DISSENTING.
The three miles of sub-marine cable, the subject matter of the assessment for taxes in this case, does not lie within the first taxation district of the Territory of Hawaii. The first taxation district comprises the island of Oahu. The island of Oahu stops at low water mart except where there is an outer reef, in which case it may be said to extend to such reef. By no reasonable use of language, however, can the island of Oahu be said to extend any further than this into the ocean. The j urisdiction in the three miles zone surrounding the islands, which ■extends to a still further distance for revenue purposes, is an attribute of sovereignty of the United States. During the existence of the Republic of Hawaii such sovereignty was vested in the republic. It was ceded, however, upon annexation to the United States. It is not necessary to consider the extent or nature of the jurisdiction of the United States within such zone nor what conditions would arise should Hawaii be made a state of the Union. Under present conditions this sovereignty remains intact in the federal government. It has not been ceded by the federal government to the Territory of Hawaii. I, therefore, dissent from the opinion of the majority of the court.