In re Assessment of Taxes of H. Hackfeld & Co.

OPINION OF THE COURT BY HARTWELL, J. Are the agency contracts taxable? The statute includes contracts in its classification of taxable things. In order to hold that these contracts are not taxable a distinction based upon some principle must be made between taxable and nontaxable contracts. It is not enough to exempt a contract from taxation that it is intangible, for that is the nature of all contracts ; nor that the contract is secured by reason of influential — 600 — relations; or in consideration of reliance placed in the ability, experience and good judgment and the difficult nature of the service of those to whom the contract is awarded. Such considerations may always exist, and it is not too much to say that except in cases of sinecures they always ought to be the basis of contracts. The uncertainty or length of time of the contract may affect its value, but it would be illogical that one who has the benefit of a contract for five years shall be taxed therefor and that the holder of a contract for one year shall not be taxed. It is true that ownership of a majority of the stock of an incorporated sugar plantation carries with it the power to secure contracts for the agency of the plantation, but this is not an incident of ownership of the stock in the same sense that receipt of dividends is a proprietary right. If the majority shareholders were to appoint, as they might do, an agent other than themselves and give him the contract, there w'ould be no stronger or other reason for taxing such person for the Avalué of his contract than when they giAm the contract to themselves rather than a third person. Moreover, if it were true that obtaining an agency contract is an incident of owning a majority of the stock, that does not detract from the value or taxability of the contract any more than from the money received from dividends as a result of oAvning stock. But it is claimed that the contracts require in some instances heavy adAance's .of money to be made by the agents, who undertake great risks thereby, resulting, perhaps, in large losses and that at any time large loss may result from such causes as fall in prices, shortage of labor or failure of the crop. But it is to be presumed as a rule that the security for advances is sufficient, or the risk Avould not kaAe been taken. Castle & Cooke show that their agency profits generally for their various plantations netted them an aAerage annual profit of $7,276.4:7, OAving to unfortunate conditions in respect of certain plantations. This would be a reason for a lower valuation of the contract for such plantations, but would not justify — 601 — the conclusion, that the agencies of other plantations were of less value than their results showed. It is said that the contracts are of value solely to those who hold them and have no salable or market value because the holders either do.not wish to sell or have no right to do so; but it is seldom that contracts are assignable like negotiable paper. Their non-assignability does not exempt them from taxation. Further it is claimed that the test value for taxation purposes is not the value to the owners, but the market value. This is sometimes true, as for instance, the owner of an heirloom may attach value to it entirely apart from its intrinsic value and which would be utterly inappropriate as a basis for assessing taxes; but it cannot be said of things having an actual, real and estimable value to their owners, which is a value per -se and intrinsic, that they have no market value. Contracts which secure to their holders many thousands of ■dollars in a year as agents of sugar plantations have actual, intrinsic value, which cannot be eliminated because the holders of the contracts will not or cannot part with them, or have obtained them in consequence of personal or business relations, or of ownership of a controlling interest in the plantations, or because in return for such compensation they give an equivalent service. The statute in mentioning contracts as taxable makes no exception of agency contracts obtained as these are obtained, but applies in every such instance. In the Brewer case, 15 Haw. 29, it was held that contracts for the agency of the Onomea and Ookala Sugar Companies were within the meaning of the statute, but that on the evidence adduced in that case no valuation could be attached to them. Hpon the evidence adduced in these cases we cannot say that value cannot be attached to them. To say that they are valueless requires one to lay aside conceptions of value in its ordinary and usually understood meaning. One could as easily estimate the value of a contract as the value of stock. It is true that there are many — 602 — things of great pecuniary value which are incapable of definite valuation for purposes of taxation or for any other purpose, as for instance, influence, power, opportunity, expérience, integrity, tactfulness, good judgment, acquaintance, the value of which is inestimable, and none of which per se would be taxable. It would be grotesque to speak of the possessor of such qualities or qualifications as taxable for them; but a contract obtained by reason thereof, or as a consequence and by the exercise of such desirable and advantageous qualities or opportunities is none the less therefor a taxable contract. What then is the value of these contracts ? Is it not what their holders get out of them less what they expend in executing them ? All contracts are in the absence of evidence to the contrary presumed to be based on a sufficient and legal consideration, a quid pro quo. The plantations obtain from their agents the benefit of their services, their best judgment, their attention to the affairs entrusted to their charge, and it is to be presumed fhat for these benefits full, adequate compensation is made. Surely the contracts are not valueless because the agents earn and deserve all they, receive for performing them. This does not mean that one may not make a contract by.which he has bound himself to do things which entail not gain to himself but loss. The contracts in question are not of that kind. On the contrary they .bring and are meant to bring definite important and direct pecuniary gains to the agents who hold them. They are assets of great value, so recognized by all persons familiar with the business houses who hold them. These values are very tangible things, and the way it comes to pass that the contracts are obtained is immaterial. It is claimed that on the rule noscitur a sociis the contracts meant by the tax law must be construed to mean something like the other things therein named, as for instance, chattel interests; but the word “contracts” was introduced in 1886 into the earlier statute and evidently was meant to include somehing different from and in addition to the'things previously enumerated. — 603 — As to the claim made by one of the taxpayers that the Fourteenth Amendment requiring equal protection of the laws does not permit the taxation of the contracts in question, and also that their taxation would amount to double taxation, namely, one under the income tax law and the other under the law treating the contracts as a sjDecies of property, “double or duplicate taxation may be enforced by a state or may result from the operation of the tax laws of a state without violating the constitutional guaranty of due process of law. It has been repeatedly-recognized that duplicate taxation, to a certain extent, cannot be avoided in state tax systems. Thus may be taxed both property and the money that is paid for the property; land and the mortgage upon the land; property and the income from the property. * * * Assuming that there is no discrimination as between the tax-payer in the same class, the power of the state to tax twice is said to be the same as the power to tax once, that is, no consitutional question is raised by the exercise of that power.” Judson on Taxation, Sec. 426. “It is said that the plaintiff’s property had previously been assessed for the same purpose, and the assessment jjaid. If this be meant to deny the right of the state to tax or assess property twice for the same purpose, we know of no provision in the Federal Constitution which forbids this.” Per Miller, J., in Davidson v. New Orleans, 96 U. S. 106. “It is not every indirect duplication of a tax which constitutes doiible taxation. If the duplication be only an incident of the tax it is not double taxation in the sense of the requirement that equality and uniformity. must be preserved.” Cooley on Taxation, 3d Ed., 389, note 1, citing S. Nashville St. R. Co. v. Morrow, 3 Pickle 406. Another objection made to taxing the contracts is the uncertainty of their duration, making it impossible, as it is claimed, to attach value to them in any case not for more than one year. There appears to be practically a certainty of renewal of these contracts from year to year, but the correct method of valuing yearly contracts is to take their cash value for one year only. The cash value of such contracts, as well as of longer term contracts, could easily be appraised by persons qualified to hold — 604 — them, after ascertainment of the conditions and prospects of the plantation and a consideration of the probable cost of production and price of sugar. This is the estimate that every purchaser of sugar stocks makes in determining what he will pay for them. Upon the whole we think that while for various reasons it may not be true that every species and form of contract is taxable, these contracts have such a distinctive, established and valiiable nature that they cannot be eliminated from the statute, and that their reasonably approximate cash value may be ascertained. Various methods of ascertaining a cash value for time contrete would be appropriate. One method would be to ascertain the present worth of the yearly profit for a term of years, which of course, would decrease in amount with a lapse of each year of such term, and to make allowances for any special features that might exist. By applying such method of valuation, omitting from the calculation all incidental profits, considering solely those arising from commissions on sales, we consider that the assessor’s valuation was not too high in respect of H. Hackfeld & Co., Ltd., ($110,615.40) ; of Castle & Cooke, Ltd., ($97,662.60) ; and of F. A. Schaefer & Co., ($18,127.20). In those instances the method of valuing by obtaining the present worth of estimated annual profits for a term of years would bring the assessor’s valuations well within results so reached, and we sustain those valuations. For various considerations presented in the cases, for instance, in respect of the McBryde contract of Theo. H. Davies & Co., Ltd., to which we attach no value, we reduce the assessor’s valuations as follows: C. Brewer & Co., Ltd., to $40,000; W. G. Irwin & Co., Ltd., to $40,000; Alexander & Baldwin, Ltd., to $35,000; Theo. H. Davies & Co., Ltd., to $15,000. The decisions of the tax appeal court are reversed and the assessor’s valuations are sustained in the instances above mentioned and are reduced as above stated.