No. 381.
Mr. Comly
to Mr. Evarts.
Legation of
the United States,
Honolulu, February 16, 1880.
(Received March 3.)
No 91.]
Sir: I have the honor to transmit correspondence
and inclosnres with the United States consular agent at Hilo, and with the
Hawaiian Government, with reference to the case of Patrick Quinn, an
American citizen illegally taxed by the Hawaiian authorities at Hilo.
Standing upon his right, and refusing to pay the tax, he was arraigned
before the police court of Hilo, and notwithstanding proof that he was not
subject to the tax, the court condemned him to pay the tax and $3 additional
costs of suit, or work out the whole amount on the public highway at 25
cents a day until paid.
After paying the tax and cost under protest, he appealed to the
[Page 597]
United States consular agent at
Hilo, and the agent brought the case to my notice. The Hawaiian cabinet
admitted that the judgment of the court was erroneous, and that Quinn was
not liable to the tax, and ordered the money refunded, but held that the
assessor and the court having acted bona fide could
not be blamed in the premises, and that Quinn had sufficient remedy in an
appeal from the decision through all the courts up to that of last resort. I
respectfully refer the Secretary of State to the papers attached,
particularly the last, No. 8, and ask that my action may be specifically
approved or disapproved, in order that I may stand instructed as to cases of
like sort hereafter.
There are vexatious regulations here requiring every person who enters the
port, except in transitu, to pay $2 hospital tax, and
every person leaving the kingdom after 30 days residence to buy a passport
from the Hawaiian authorities. The hospital tax levied on foreigners
supports a large hospital, with a handsomely increasing surplus after paying
all the expenses of native beneficiaries, while foreign residents must ipay
$1.50 a day, and are not received at all without a guaranty or a deposit of
one month’s pay in advance.
There is no public provision whatever for any destitute foreign resident,
while the native poor are substantially supported by this tax on foreigners
entering the kingdom. These are laws within the scope of the law making
power, and subject to criticism only on the score of policy. I mention this
as a specimen of the thrift with which foreign residents here are milked for
the benefit of the national treasury, and it is for this reason that I have
endeavored to make the case of Patrick Quinn a basis for correct treatment
of all cases where taxes have been or may be collected from persons not
liable, even under Hawaiian laws.
I have, &c.
[Inclosure 2 in No. 91.]
Mr. Comly to Mr.
Kapena.
Legation of the United States,
Honolulu, December 30,
1879.
No. 168.]
Sir: In accordance with the agreement at the
close of an oral discussion of the matter of Patrick Quinn, I have the
honor to present to your excellency a brief of the points of the
case.
As I understand it the following facts are agreed upon:
That Patrick Quinn is a native American citizen; that he left Port
Gamble, in the United States, on the bark Jennie Pitts, on the 14th day
of July last; that he arrived at Honolulu on the 9th day of August
thereafter; that he has been in the lawful pursuit of his own business
since, at Kau and Hilo; that he was notified on Friday, the 12th of
December, 1879, by a constable, to pay taxes which are assessed under
the law of this kingdom on the last day of June, each year; that Quinn
called the attention of the constable to the fact that he was an
American citizen, residing in the United States at the time the alleged
tax was assessed, and consequently he was in no sort subject to said
tax; that he, notwithstanding, agreed to go before the sheriff and state
the case; that he did so state the case, and on demand produced proof of
the correctness of the statement to the sheriff; that the sheriff, after
having demanded proof, disregarded it and demanded that Quinn pay him
($5) five dollars tax or go before the police court; that Quinn, still
standing by his right, and refusing to pay a tax levied before he had
left his own country, was at once arraigned before the police court, and
condemned to pay the sum of five dollars for taxes and three dollars
costs of court, and was notified that, “unless paid immediately, he
should be imprisoned and have to work out the amount at hard labor, at
the rate of twenty-five cents per day, until paid; and at once, then and
there, said sheriff gave orders to his officer to set said Quinn at
work”; that Quinn thereupon paid the alleged tax and the cost of court,
under protest, and laid the matter before the United States consular
agent at Hilo, who has brought the case to my notice. So far, I believe,
the facts are agreed upon.
[Page 598]
I
now proceed with my own statement, which I cannot hut think your
excellency will find as fully sustained, by reason and evidence, as the
above agreed facts.
The consular agent, Captain Spencer, addressed a courteous note to
Sheriff Severance, under date of December 16, once more calling his
attention to the fact that Patrick Quüm was not liable to the tax
assessed upon him, and therefore not subject to arrest or imprisonment
for not paying the same. To this the sheriff replies in a style of
military brevity and imperativeness, stating that he had arrested Quinn
“as a delinquent tax-payer under the authority of a warrant from the
Hilo police court,” “that Quinn was brought before the Hilo police court
and by the judge sentenced to pay,” &c.
This warrant was, of course, issued at the instance and upon the demand
of Sheriff Severance, upon his allegation, in the face of proof to the
contrary that Quinn was a delinquent tax-payer. Your excellency will
permit me to say that the sheriff’s somewhat peremptory letter furnishes
no information which was not already in the possession of Captain
Spencer, consular agent. The captain was already aware that Sheriff
Severance had arrested Quinn and dragged him before the police court;
the information Captain Spencer desired to hear, and asked to hear, was,
why was this citizen of the United States charged by the sheriff under a
law to which he was not subject, and to which he proved he was not
subject?
This is not a dispute as to taxes, it is not a question as to whether the
tax is too high or too low, to be decided by an appeal to the board in
such cases provided. This is a question why Patrick Quinn, a citizen of
the United States, living in the United States when this tax was levied
or assessed, is outraged of his personal liberty by an officer who has
proof produced before him that Quinn is not subject to the claim
illegally made upon him. I submit that Quinn has no occasion to go
before a tax board of appeal; he has nothing to do with the tax and is
not subject to the board. He has shown a desire, it seems to me, if it
please your excellency, to become a peaceable, law-abiding and
industrious resident of His Majesty’s dominions, and, I have no doubt,
will promptly pay any tax or other obligation due from him as such.
But I submit that he has a right to refuse to pay a tax assessed upon him
before he came into the country, and that his arrest and imprisonment
are totally indefensible upon any legal or equitable ground whatever. He
seems to have been put to great inconvenience and expense, and has had
his personal liberty put in peril in a matter where he has no more
obligation or liability than any citizen of the United States now
residing there, and never out of his own country.
Renewing the assurances of my highest consideration and respect,
I am, &c.,
[Inclosure 7 in No. 91.]
Mr. Kapena to Mr.
Comly.
Department of Foreign Affairs,
Honolulu, February 14,
1880.
Sir: On return to the office yesterday morring
I found that the secretary of the department had sent to your excellency
a copy of the attorney-general’s dispatch to this office touching the
arrest of one Patrick Quinn at Hilo, Hawaii.
It is certain that the police magistrate of Hilo misapplied the law, and
he should have given judgment discharging Quinn. But the case stands in
this way. The tax assessor found Patrick Quinn in his district, because
he was employed on one of the plantations in that district, and in
obedience to the form of assessment universally
used for many years in this country the manager returned his name as one
of the employés on the plantation liable to taxes. I inclose a blank
form in use in such cases, with the questions to which I refer, marked
A.
Thus your excellency Avill see that the assessor was not to blame for
having placed his name on the roll.
The next step in the process of tax collecting in this country is for the
assessor to deliver his roll to the governor of the island, who sends it
to the department of finance, and the department in due course of
business to the collector, wüose duty it is to collect according to that
roll.
Thus it will be seen that up to this point no executive officer of this
government had any reason to suspect that Quinn was not properly on the
assessment-roll. Now, if the collector is unable to collect on parties
simply, he takes out a summons from the district court, for instance,
like any other creditor, and the sheriff must serve that summons. He has
no option in the matter, and all representations made to him are quite
valueless. The sheriff is the mere officer performing the order of the
court.
In this instance, Quinn was so summoned before the police court of Hilo,
and defended
[Page 599]
himself, as I am
advised, and the police magistrate misinterpreted the law and wrongly
adjudged that Quinn’s remedy was before the board of appeal, whereas he
should have discharged Quinn. But Quinn had the right to appeal from
that wrong judgment to the local circuit judge of Hawaii who lives at
Hilo. This appeal he did not take, and so on he might have appealed to
every court up to the supreme court itself, and I beg to remind your
excellency of the universal rule, that every man must exhaust his legal
remedy before he has occasion to resort to his country’s representative
for redress, or, in other words, one cannot complain that justice is
denied him, until he has sought for it from all those who are appointed
to do him justice.
It may be said that Quinn is ignorant of our mode of procedure. But
Captain Spencer is not, for he has resided and done business in this
country for twenty-eight years, Your excellency’s note to me, dated
December 30, alludes to a conversation had with me some two or three
days previously.
The facts, as I now learn them, are, that the next day after the judgment
in the police court of Hilo against Quinn, Captain Spencer called at the
office of Mr. Sheriff Severance, on the 13th of December, and Mr.
Severance said to him that if he (Mr. Spencer) would write to the
minister of finance, he (Mr. Severance) had ho doubt that the minister
would remit the amount; and Mr. Severance further says that he supposed,
from his remarks, that Captain Spencer would take that course.
Mr. Severance further wrote a letter on the subject, which was received
here on the 17th of December last, and replies were sent to Mr.
Severance on the 23d following, directing him to call on the tax
collector, requiring him to pay the money back to Quinn; and as the
steamer started on the same day from Hilo to Honolulu, Mr. Severance, of
course, could not find Quinn that day; he (Mr. Severance) would arrange
the matter as soon as he could find Quinn.
And so it was supposed here that the matter had ended and was amicably
arranged until your excellency’s note of February 4 was received at this
office. Immediately on receipt of that note another letter was sent to
Mr. Severance directing him, if the amount had not already been paid Mr.
Quinn, to pay it at once; and if Quinn were not in Hilo to pay it to
Captain Spencer; and if Captain Spencer would not receive it to notify
him (Captain Spencer) that he (Mr. Severance) held the amount subject to
Spencer’s or Quinn’s order.
Thus I trust that your excellency will perceive that there was no fault
to be attributed to the executive officers in the inception of this
matter; and that after the mistake made by the Hilo magistrate, all the
authorities have promptly endeavored to correct the error, even before
your excellency communicated with me; and I trust you will further see
that if Captain Spencer had acted in that calm and friendly manner which
might have been expected of him from his conversation on the 13th of
December with Mr. Severance, your excellency would never have been
troubled with this matter.
Renewing the assurances of the highest respect and most distinguished
consideration, I have the honor to be vour excellency’s most humble,
obedient servant,
His Excellency James M. Comly,
United States Minister Resident, &c.
[Exhibit with Inclosure No. 7, marked
A.]
1879.
Statement of taxes of —— ——, district of ——, Island of
——.
(Assessments to be made of full cash value, as of July 1,
1879.)
| House-lots and houses |
$ |
| Acres of sugar-land |
|
| Acres of rice-land |
|
| Acres of kalo-land |
|
| Acres of pasture and forest land |
|
| Acres of growing cane |
|
| Acres of growing rice |
|
| Acres of growing kalo |
|
| Machinery of all descriptions |
|
| Head of cattle |
|
| Head of milking cattle |
|
| Head of sheep |
|
| Head of goats |
|
| Merchandise of all descriptions |
|
| Cash, bonds, and evidences of debt |
|
| Furniture |
|
[Page 600]
| Property in hand belonging to others |
|
| Value of property not enumerated above |
|
| Number of horses |
|
| Number of carriages for pleasure |
|
| Number of vehicles for the carriage of merchandise |
|
| Number of dogs |
|
Can you read and write?
Are you a Hawaiian subject?
Names of persons in your employ subject to taxation.
I do solemnly swear that the list of persons residing with me, and of
animals and other property in my possession, or owned by me, liable to
taxation, which I have given above, is true; so help me God.
Subscribed and sworn to before me this — day of—, 1879.
[Inclosure 8 in No. 91.]
Mr. Comly to Mr.
Kapena.
Legation of the United States,
Honolulu, February 16,
1880.
No. 171.]
Sir: I have the honor to acknowledge the
receipt of your excellency’s note of the 14th instant, in which you
state in detail the efforts that have been made to rectify the injustice
done to Patrick Quinn, by an erroneous assessment of taxes not due from
him, and by trouble and expense and fine and threatened imprisonment,
through erroneous judgment of a Hawaiian court.
I desire to express frankly my sense of the readiness with which redress
was offered, so far as redress could be made by refunding money
wrongfully taken (we may admit) through an honest error of judgment.
While not desiring to proceed further in this case without instructions
from the Secretary of State, I cannot leave it without saying that your
excellency must see from this very case, on reflection, that redress
from the courts must be, to say the least, very inadequate as a remedy
for this particular sort of injustice. I cannot admit that an American
citizen may be forced to fight for his liberty and property through all
the Hawaiian courts up to that of last resort, because an official of
this government has committed an error which might have been avoided by
simply asking information of the man himself. In the case of this
workingman such a course would amount to a substantial denial of
justice. He has neither the learning nor the money to enable him to
prosecute such a contest. I respectfully suggest to your excellency that
the tax assessor is bound to know, before he places the name on the
list, whether the person assessed is liable. If he places a man on the
list who is not subject to the tax, it is he and not the person
erroneously taxed who should pay the penalty of the error.
The amount in controversy in this case is nothing. It has not uncommonly
happened that great principles have been tested upon cases where the
pecuniary interest was inconsiderable. I am well aware of the principle
quoted by your excellency, leaving citizens to the decision of the
foreign courts where they are rightfully before such courts; but I
submit that in this case the courts have no right to the person or
property of Patrick Quinn, under the circumstances which we are all
agreed have existed.
With the highest respect and most distinguished consideration, I am, your
excellency’s very obedient servant;
His Excellency John M. Kapena,
H. H. M. Minister of Foreign Affairs.
Note.—The remaining inclosures are omitted
herefrom.
