In re Assessment of Taxes, Hui of Kahana

[677] OPINION OP THE COURT BY PERRY, J. This is an appeal by the Territory from a decision of the tax appeal court for the first judicial circuit declaring that certain water rights which had been assessed against the “Hui of Kahana” at a valuation of $400,000 had no taxable value on January 1, 1913. The “Hui of Kahana” is a Hawaiian hni, of the same general character as other Hawaiian huis which at times have been involved in litigation before this court. Its members are tenants in common of its lands “in proportion to their respective ownerships of shares, so-called.” Pilipo v. Scott, ante 609, 612. The members have adopted “by-laws” or regulations (a copy of which has not been filed in the case at bar) providing for the choice of officers or other agents and relating, doubtless, to the transaction of the business of the hni. At its formation the number of shares of this hui was 115 but subsequently eleven shares were, in the language of the testimony, “purchased by the hui,” leaving 104 shares owned by individuals. In effect the eleven shares were retired, thus reducing the total number of shares to 104. Of the outstanding shares Mrs. Mary E. Foster claims to hold 91 491/120 and L. L. McOandless nine, the remainder being held by a few other persons. The property owned by the “Hui of Kahana,” or its members, consisted on the assessment date of the ahupuaa of Kahana containing an area of 5050 acres. After viewing the land the assessor for the purposes of taxation made the following classification and fixed the following valuations: land on or near the beach, 50 acres, @ $250, $12,500; wet land, 115 acres, @ $200, $23,000; agricultural land, 800 acres, @ $100, $80,000; and mountainland, 4085 acres, @ $1, $4085,^ — a total valuation of $119,585. In addition to this he placed a valuation of $400,000 upon certain water rights, appurtenant to the ahupuaa of Kahana and referred to in the evidence and argument as the “surplus water” of Kahana, which rights in conjunction with rights of way and other rights, had been, in December, [678] 1912, leased or agreed to, be leased by tbe bui to tbe Waiabole Water Company, Limited, for tbe term of fifty years at an annual rental of $10,000. The “Hui of Habana” filed with the assessor <a return, for taxation purposes, of “11 abares in said Hui, being original shares of,” naming the original individual owners of the eleven shares and placing a valuation of $5500 on the property so returned. The assessment of these eleven shares likewise was made against the “Hui of Habana,” tbe assessor increasing the valuation to $11,000. The assessor further assessed to tbe “Hui of Habana” the water rights already referred to at a valuation of $100,000. The hui appealed, with the result above stated. Mrs. Eoster in her own name returned her 91 191/720 shares and was assessed for the same. At the hearing of the appeal from the assessment against her, both parties seem to have proceeded on tbe assumption that there was a separate assessment on the so-called “surplus water” of Habana and that the value of the surplus water should not be considered in arriving at a valuation of the property in which she held the number of shares stated. L. L. McCandless and the other members of tbe hui also filed returns each in his own name of the shares respectively held by them and assessments were made against them in accordance with their returns but whether with or without an understanding that the surplus water was not included in the assessments does not appear. Whether under the circumstances a separate assessment upon the water rights would be invalid as against tbe members of tbe bui or any of them, either because the water rights were included within the description of tbe abupuaa returned by and assessed to them or because the water rights and all other interests or parts of the ahupuaa were still united in ownership, need not be determined in this case. Upon another ground the assessment cannot be sustained. The “Hui of Kahana” as such is not a legal entity. It is neither a corporation nor a'partnership. • The title to its lands is not in a trustee for its use and benefit [679] but is held iu undivided interests by tbe members themselves as tenants in common. The statutory provision that “the interest of any person in any property shall be separately assessed” (with exceptions immaterial to this case) “and every person shall be liable to taxation in respect of the full value of his interest in such property,” is applicable. The value of the interest of each member of the hui'in the water rights should be assessed, either separately or as a part of the land as the law may require or permit, directly to the member himself. A. A. Wilder (Thompson, Wilder, Watson & Lymer on the brief), for the taxpayer. A. G. Smith, Deputy Attorney General (Wade Warren Thayer, Attorney General, with him on the brief), for the assessor. The assessment against the “Hui of Kahana” was not authorized by statute and for that reason the decision appealed from is sustained.