In re Assessment of Taxes, Commercial Pacific Cable Co.

OPINION OF THE COURT BY HARTWELL, J. (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 [401] Hawaii which was on board of ships cleared for San Francisco but still within the harbors of Hilo and Honolulu. Jurisdiction over property in harbors and ports as it is claimed-does not imply jurisdiction over property on the high seas beyond and outside of harbors and ports. It is not clear that the appellee’s counsel concede that Congress could delegate to the Territory any portion of its sovereign right over the three mile zone. Their brief mentions that there has been no “express or implied delegation of this particular attribute of sovereignty, i. e., jurisdiction for such purposes as taxation for three miles out to sea.” But the argument is clearly and we think unanswerably presented that in the absence of authority “expressly or by fair implication” conferred on it by Congress the legislature of Hawaii cannot exercise over surrounding territorial waters any legislative powers including that of taxation. Section 6 of the Organic Act provides: “That the laws of Hawaii not inconsistent with the constitution or laws of the Hnited States or the provisions of this act shall continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States.” The statute concerning taxation by fair implication may be regarded as applying to property in territorial waters. The effect of this could not infringe on the exercise by the general government of any sovereign powers for the purpose of national defense, protection of fisheries or any other purpose for which by common agreement of publicists, jurists and courts a nation may make exclusive use of its adjacent seas. The situs of private property on United States public lands within the Territory does not affect the right of the Territory to tax it. It is difficult to see wherein its situs in United States waters surrounding the Territory presents any other condition affecting the taxation of the property than when that sitas is on public lands. If national control over national territorial waters adjacent to the coast boundary is restricted to purposes of defense, and does not include the power to tax property having its permanent situs within those waters, then it follows as a matter of course that Congress, having no power itself to tax, [402] could'not huye delegated te the Territory of Hawaii any power in that'regard. 'If, on'the-other hand, Congress.could lawfully authorize- a national tax on property permanently placed and not in transit within such territorial waters, it could delegate the power to this Territory. No reason is suggested why power to tax; property sosituated"should not be delegated equally with power to tax property on land within the Territory, or why a general power to tax property within the Territory should be limited by inference to the tax of property having Its situs on land. 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.” [403] International Law, Sec. 54. Hall, in his treatise on International Law, discusses the views of writers on public law upon the subject of proprietorship of the sea; pp. 155, 157. Referring to the appropriation of marginal seas, straits and enclosed waters for the purpose of fishing rights as well as by effectively commanding such waters, this writer says: “Accordingly on the assumption that any part of the sea is susceptible of appropriation no serious question can arise as to the extent of property in marginal waters;” p. 159. Wheaton, after describing the “maritime territory of a state” as extending to its “ports, harbors, bays, mouths of rivers and adjacent parts of the sea inclosed by headlands,” says: “The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all. the coasts of the state. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation.” Int. Law, Sec. 177. 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 [404] do so to evade payment of taxes on. personal property by placing it outside of low water mark on tbe first day of January when liable to assessment. Tbe inference that Congress did not intend tbat tbe tax laws of tbe Territory should apply to property in territorial waters and that the expression “within the Territory” should mean within its geographical limits would lead to possible consequences of so grave a nature that the inference ought not to he made unless for definite and satisfactory reasons. As stated by Coleridge, C. J., in the Reyn case: “The argument ab inconvenienti is perhaps not one which sound logic recognizes; and a startling conclusion does not always shew that the premises from which it follows are untenable. But the inconvenience here is so grave, and the conclusion is so startling, as to make it reasonable, I think, to say that the burden of proof lies heavy upon those who disregard the inconvenience, and maintain the conclusion.” Robertson & Wilder for appellant. Ballou & Marx for appellee. 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.