Keola v. Maui Auto Co.

OPINION OF THE COURT BY ROBERTSON, C.J. (Perry, X, dissenting.) Iii an action of assumpsit instituted on May 19, 1911, in the district court, of Wailului, County of Maui, the plaintiff claimed'of the defendant the sum of $125.75 for taxes, as follows: $2.75, special income tax for 1910; $101, specific tax on automobiles; $11, personal property tax first semiannual instalment for 1911; and $11 personal property tax, second semi-annual instalment for 1911; also penalties for delinquency, interest and costs. -Judgment was given for the plaintiff for the sum of $130, which covered what was claimed-with the exception of the item of $11 for the second semiannual instalment, of the personal property tax for the current year. The plaintiff brings this appeal. The sole question is whether the plaintiff was entitled to recover the last mentioned item of $11. The district magistrate took the view that, as, by the statute, the second instalment of the personal property tax would not become delinquent until November 15th, no action for its recovery could be maintained before the expiration of that date. On behalf of the plaintiff it is contended that a proper application of the statute required that the judgment should have included the disputed item. ' Sections 12'63, 1264, 1265, 1267 and 1269 of the Revised Laws, as amended by Act 89 of the Session Laws of 1905, contain the following provisions. Sec. 1263. “Specific taxes and all property taxes shall be due and.payable on and after January 31st, in each year.” See. 1264. “All real and personal property taxes- — except specific taxes — remaining unpaid on May 15 of each year shall thereby and thereupon become delinquent as to one-half the [577] amount due. And the balance of such real and personal property taxes remaining unpaid on November 15 of each year shall thereby and thereupon become delinquent.” Sec. 1265. “A penalty of 10 per cent shall be added by the assessor to the amount of all delinquent personal and property taxes, which penalty shall be and become a part of such tax and shall be collected as part of such tax. Any delinquent tax and penalty remaining unpaid fifteen days after the date of delinquency shall bear interest from the date of the expiration of said fifteen days at the rate of ten'per cent per annum until paid, which interest shall be and become a part of such tax and shall be collected as part of such tax.” Sec. 1261. “Each assessor or his'deputy shall, between January 31 and November 15, both inclusive of each year, for the convenience of tax payers, attend at certain times or places in each district for the collection of taxes. “Public notice of the time or times, place or places of such attendance and the object thereof shall be given by advertisement in a weekly newspaper or newspapers, and by posting a notice of the same in at least three conspicuous places in each district. Such notice shall also contain a statement that all brake, sulky, ox-cart, automobile, bicycle, wagon, wagonette, hearse, omnibus, dray, cart and carriage taxes and one-half of all property taxes not paid on M;ay 15 will be delinquent and subject to a penalty of ten per cent additional, and if not paid 15 days after delinquent interest from the date of expiration of said fifteen days shall be added at the rate of ten per cent per annum on such tax and penalty, and that the remaining portion of the property taxes due and not paid by November 15 will be delinquent and subject in like manner to a ten per cent penalty and ten per cent interest. And that the delinquent tax list will be published as soon after December 1 following as possible. “Each tax payer shall pay all specific taxes and one-half of all property taxes due by him to the assessor or his deputy on [578] or before May 15, and he shall pay the remaining portion of the property tax due by him to the assessor or his deputy on or before November 15 of the year in which they are assessed, and no other notification or demand than that in this chapter provided for shall be required or necessary.” Sec. 1269. “If any tax be unpaid when due, the assessor may proceed to enforce the. payment of the same, with all penalties, as follows: 1. By distress * * * * *. 2. By suit or action in assumpsit, in his own name, on behalf of the Territory of Hawaii, for the amount of taxes and costs, or if such tax is delinquent for the amount of taxes, costs, penalties and interest, in any* district court, irrespective of the amount claimed.” By other sections of the statute it is provided that all the tax-payers shall make returns of their property between the 1st and 31st of January, in each year; that the assessment books shall be made up on or before May 1st, and shall be open to inspection from the 1st to the 15th of May; that appeals from assessments may be filed between May 1st and 15th; and that the tax appeal court shall sit for the hearing of appeals between the 1st and 20th of June. Standing alone and without reference to other sections, the provisions of sections 1263 and 1269 would make it clear that actions for the recovery of property taxes could be instituted at any time after January 31st of the year of their assessment. Ejrll effect must, if possible, be given to the explicit language of those sections. It should he noted with reference to property taxes that the provision in section 1264 is not that one-half shall be due and payable on May 15, and that the remaining one-half shall be due and payable on November 15, but that, as stated in section 1263, the whole shall be due and payable on and after January 31st. The right to maintain actions for the recovery of taxes is not affected by any of the provisions relating to delinquency [579] or its consequences. And, we are* satisfied, the provision contained in section 1267, that each tax payer “shall, pay” his specific taxes and one-half of his property tax on or before May 15, and the remaining portion of his property tax on or before November 15, was not intended to nullify that portion of section 1269 which authorizes the bringing of suit for taxes before they have become delinquent. The mention of those two dates is only incidental to the main subject of that section, which is the giving of public notice regarding the payment of taxes and of the penalties for delinquency. Notwithstanding the peremptory declaration of section 1263, that all property taxes shall be due and payable on and after January 31st, the provisions for taking appeals to the tax appeal coui*t, which does not sit before June 1st, show that any tax that may be involved in such an appeal could not be the subject of an action of assumpsit until the appeal has been decided and the liability of the tax payer determined. Reconciling and giving effect to each of the provisions referred to, as we must do if we can, we should have to regard the provisions of sections 1263 and 1269 as subject by implication to the proviso that the amount of the tax has been definitely fixed either by the acceptance and approval by the assessor of the tax-payer’s return, or by an assessment made in the absence of a return, or by the determination of a dispute by the tax appeal court. In the vast majority of cases, as in the case at bar, the liability of the- tax-payer will have been determined on or before May 1st, and as to all such cases section 1269 may apply without any practical difficulty and according to the- apparent intent of the legislature. That actions for the recovery of taxes, ordinarily, are not brought before the taxes have become delinquent, or because there may be a general impression among the tax-payers that they cannot be forced to pay their taxes before the arrival of the respective delinquent dates, are not reasons for ignoring the legislative mandate. E. W. Sutton, Deputy Attorney General, for the plaintiff. The legislature having, in plain terms, said that the assessor may bring suit to enforce payment “if any tax be unpaid when due,” it is not for this court to say that what the legislature meant was that the assessor may proceed to enforce payment of a tax only when it has become delinquent. Good and sufficient reasons probaby may be found in the practical enforcement of the law to show why the assessor should not be compelled to wait until a personal property tax has become delinquent before bringing suit to compel its payment. ' The appeal is sustained and the case is remanded to the district court of Wailuku with instructions to include in its judgment the item of $11, the subject of this appeal.