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)Iki;i:vlii Qrt:nrux risojt Vntuurr Coimit, T'iiist Ciuouit.
Ai'iifrni N'oi:mi.iii I, 1010. ( Dtrintii Nmkuiimi 17, 1910.
IlAlilWl.M., ( '..J., I'mtltY AMI Ih; Ityl.T, .1.1.
CoNmuTf ifmc.'it jciccr rn(f.
Tho ilcfcndatit's usiccmcnt "to pay stirh rates nnntmlly for tlio
tio of thu how or us ni.iy lio tlxcil," luuilo wltli tho Biiporliilomlont
f putitlc Miiks In Older to obtain pcinilunlon to connect prem
Isch wltli tlio public Kowcr, Is enforceable under the decision In
territory v. ;rtc, 13 Haw. II, tor rates fixed prior to the act
of 1904 (Hoc. 1030 II, 1,.), and Is not made under ilutcas by renson
of n hIiiIciiiciU to the defendant by an Inspector of tlio board of
health that the defendant would be prosecuted for nulsiiiico If ho
did not connect with the sower.
Cn.MiiuTH drciise ol Illegality not available.
The defendant having obtained permission tu connect his prem
iers with the public sewer upon his promise to pay tho rates
mnt-liming paid them for a jcar and u half without protest and
Mopped pa) incut without any claim that the rates were Illegal
and having loutluued the uio of tho sewer for his premises, Is not
In a position to assort tho Illegality of tho rates or the unconsti
tutionality of the act under which they wcro fixed.
OPINION OK TltU COUUT HY HAUTWULI., C.J.
This win mi notion hruiight in tho district court of Hono
lulu Aln.v 11, 11)01), to recover $117 "for unpaid i-cwur rutrs
from .luiiiiurv 1, JJ)0!l, to .Ittnu .'10, l!)0i), for use of plain
lilf.M tvwur duriiij? muid time in iMiiiiiiukt'U street in said Ho
nolulu in connection with the premises owned nnd occupied
ly defendant, nt tho Mini-iinmiiil rate of $11, nnd which said
rnt defendant prolnis-ed nnd agreed to pay," thu phtintill
1 claiming, tliat there was due from defendant "by reason there
of Haiti sum of $117 together with (en per cent, penalty theic
on fixed by law." The defendant appealed to the circuit court
from thu judgment in thu mini of $li!U and cost, and thu par
ties waiving jury the defendant presented the defenses of
duress, failure of consideration anil tho statute of limitation,
claiming that his agreement with the superintendent of public
works of Juno U, 1901, "to pay such rates annually for tho
use of tho sewer ns may he fixed," was not voluntarily made,
but was forced upon him by the necessity of obtaining per
mission to connect his premise with the public sewer in order
to avoid tho penalty iiilpiHcel by regulation of the board of
health if he should not discontinue u?c of privy vaults and
cesspools and transform the kiiiiiu into approved wutercloscta
connected with the tcwer system. Thu defendant contends
that rates fixed by the superintendent prior to the net of April,
1001 (Sec. lOIili . ,.) were without legislative sanction and
that tho-c fixed under the act were illcptl on the grounds that
the net was a delegation of legislative xiucr, that the rates
wcio in the nature of a special tax- or assessment iiuidu with
out opportunity for him to be heard concerning them, and
alto liecausu interest on (-ewer lionds and expense of mainten
ance, and repair of the tcwer, on the basis of which taxes were
fixed under thu act, were provided for by general appropri
ations to which the defoidnnt's general Ihxim had contributed.
,It appeared by the defjjjilant'svidentviliTrrtnM line,' i'.ioT,
ho had blillf iiiul "pfu'mbcd a lodging house on !Mnunnkcn street
in Honolulu and wished to make a cc.-spool for tho premise'',
hut upon being told by an inspector of the lniard of health
that ii he did this he would lie prosecuted for miigancc and.
that lm must connect with the MrvgprJio signed' tlio nnfilicnt ion-,
to thu ,bUperint(udent of public! jorks, gjveii, to, iiui by the
lilumlmrs, in the form referrelilto h? Tcmtory wlhoici ID,, ,
Haw. 11, for permission to copnectj.with 'tho'iublic- sewei1,
agreeing therein "to tuiv such rates annually for the use of the
feewcr as shall be lixed." His preiuiscs were then conuicUd .
with the hewer and until December ."1, 11)02, he jinid the raits
which were fixed at $11 semi-annually, nnd then stopped paying
because, as he now says, he wanted to have his own e sspool
and was not satisfied with the sewer.
There is no evidence that the defendant made the agree
ment for payment of sewer rates from fear of living held liable
for the rfcnalty under the regulation of the board of health, for
his application for permission to connect his pnmises wilh tho
hewer was made upon hisboing told by tho health otlicer that
otherwise; he would be prosecuted for nuisi iiecV It wlis true
that eessbool drainage In that locality might h.iya lca nitirf- . I.
anee ami hence tlu(lefi;ii(luutaclld wisely, .mil, jUOt linger,
illegal coi'rcion, in. iojt'vg the 'liski'1 '
otherwise available for the sewer he might have applied to tho
governor for resort to the appropriation of $50,00(1 Hindu for
contingent purpo-es; the latter alternative, however, is not
concurred in by tho minority.
The following ea-es illustrate the rule. The constitution
ality of a law requiring the Ikiui of an ollicer fo.be a lien on
the real (state of an otlicer and his sureties cannot be attacked
by persons voluntarily executing the Iwml. "The doctrine of
due process of law certainly cannot bo invoked by tlioo who
have voluntarily executed the liond." -1. Vernon v. Kenhtu,
80 X. Y. Sitppl. SI 7. One who had been deprived by an un
constitutional statute of n right to have damages jicsscd for
tho taking of his land was held to have waiVcd Ids right to
insist upon the iiiicoutitutiomility by having agreed that "if
the-'property should bo abandoned by the respoinoiit for his
Ixncfit his damages would bo very small, if any, find that one
' thousand dollars would be a reasonable sum for liim under the
.agreement." llcUrn v. City of Mcdfonl, 18S ,Md
taxpayer whose land was sold for nonpayment o
held to bo "not in a im-dtiou to raise thu question
stitutionsility of the acts" under which his properlv was sold,
;iss. I 'J. A
of the con
fer "a person may by his own acts or by bin eiini
waive a right which -he might othorwi-o have um
visions of the constitution." Huron v. litre, 1 1
118. The defendant, imprisoned under a city oi
selling adulterated milk, had fiiriiMiiil samples
ion tu act
er the pro
f the milk
without objecting to tho constitutionality of the ordinance re
quiring this to be done and was held to have aequceed in it.
"He cannot bu heard to question the regularity or the legality
of the execution of tho ordiiiiuee, to the execution of which
he consented." Stale r, Slot r, l(i I,n. Annual, 1-1 . Defend
ants, who built u dam under a statute requiring their pay
ment of damages, were held not to lie at lilierty to question
tho constitutionality of the provision for assessing the dam
ages. People v. Miirnty, .r Hill, III I. In an net on to fore
close it lien on n treet iis-essment for work done on ihf de
fendant's lots it was held that the appellant, b failure to
object to the piopo-td work at the time named in the pub
lished notice, "cannot now I' hi aid to make the objielioii
which they should have )' -e'e b fi re lh" work ooiiimiiiced and
in the manner proeri''cl in I he slituW," the objrelinii includ
ing the claim that the mm i- mint was in coiillict with the
fourteenth ameiidurut. O'Drn v. MililirU, 111 Cal. :ST I. See
also IVtv. Cudrfl. II .. V. IIS.
"A per.-i u may by his act! or ciuis ion to act waive a right
which hi might i ihonvNu haw under the uiHtitiilirni of (!."
ITnilid Stall" a-, well as under a rt.ittijc" l'ktrr v. Soni-r-rl
l!y.,'i l'. S. Oil, (IIS. "An insolv nt dibtor who prove
his debt iu iusolwucy and ncrpts the b neiit of pnKniliiig
undir it statut:1 tlieieby w.iiis any light which he might"
otheiwi-e have had to cbjict lo the validity of tho statute as
impairing tip obliualii u if emitiacls."' I nil is v. Jtollts, 1.10
1. S. !!iil. See espivially Shcimrd v. llativn, 101 I. S. S5:,
I he plaiutilT in argument s.iys he claims for rates payable
at the did of each Mini annual peiiod finm .Innuai'v 1. 1 1)0.'!,
to lime .'10, 1111)1, am,l th'Jn.ifj r smi-aiiuuidlvIil uijvanee1,
"thnr'liiTVTiidini; the qiii-finif whether the statute of litnila-
lion- runs against the Territory.
'l'l... circuit judge is advi-ed that jhe definses alsH-e named
are not stutainahlc on the evidence MlTcicd and that tilt1 ile
fendiiut's uiotieu for judgment should, lie iliuied.
;'., IT. Siillim, Deputy Allot ney (h-ncwl (Alr.imi'Jri I,h'l-
1, s"J ''" AHhrnry lleiienil,) with him on the briif), frtr
Weitr-r on thu brief),-' for do-
. !' ' II'SL"')' (M'fjoott
lecision in Tcrrilorii v. Ihoim, 11) Haw. 11,
li eaie is not lit lore us lor eounoeration do novo, uie
iigteemenl was enforceable for rates fixed piinr- to the act of
l'.IIH. I j'
h eaie is
1 . ..1
f the act was uiicoiistitutromibon' any of thegrounds. a?ert
cd by the-defend.uit, then tlunftes fixed thereunder could not
lawfully be required of the defendant if ho is in, a position to
assert hiich illegality and enforce, a claim to be cximpt from
paying them by mibon thereof. s
Tho consideration of the agreement w-iis the peruiissioii to
coniuct with the sower. The ihfiudiint claims that be was
entitled to use the sewer witboul payment as its construction
nnd maintenance had been provided for by territorial appro
priations to which his general taxes had contributed. Iiut
even if this wore true the fact n mains that he neeived the
benefit of tho permission to cuiucct with tin sewer without
asserting tho claim that ho was inlitlcd to do this without
permission, and the consideration, which is mrt illegal or un
lawful, of this lienefil received by him reuiaius. His' pay
ment of rail's without protest fi f a year and a half, stopping
payment foj; no otheri'hWnvcd ' reason (luin liecouso he1 prefer V
red ccsspoohdrainugo, Anil hih'eoiitruued uh: of the newer do
not leave him in .a position at this lute day to dispute the
legality of (he rates fi.cil , 1,ii'ir .tnC rtt,,,,,lc ofilHOl or the
validity of tlio statute' nni'ler whiel'i they were lixed, his prem
ises having jneanwhilo received the benefit of sewer druuigt
and he hiivitlg avoideiyUfliUnijfi iirfi-c(tioiiu1)r li' nuisajiey if . ,,.
ho had maihi a cessiHjui.an ui;liittAki'o"o diililllie vi)li tho
sower. ( l . ,i Viil'.'t ohWHW " - '"
t is not every one who can interpose constitutional oh
jectioiib lo a htatute. 'J'he rule volenti turn lit injuria is some
times applied in such cases, being. another way of slating the
"poiilion of one wohse acquiescence in the operation of a statute
precludes him from afterwards excit-dug non-performance of
acts required by it on the ground of its unconstitutionality.
The acquit'soenco in this ea-e may be inferred from the de
fendant's conduct. If he had M'uuubl,v made the object ions
which he now makes to the legality, of the ralco or to the eon-
Htitutioiialitv of tho net his objictions might have received ,
consideration from tho btiperiulenddiit v!o vvijuld, il)jj Ji'W'o. i
had an opportunity to botndi-iB'd ioth(4,ieke4'J,'jnf KI'K-'l
well' taken, atid in that, ftti t.1 1 So-ftipljt' WivctTitfl Hr fo tho
legisinluro tor un iiiiieiiuiuciu oi ino uuv, or u titnus wore not
IX TIIICSI'I'UKMIi: COLJIT OK '1UIK TKUKITOKV OK"'
XO. 10. TKIMMTOl.'Y OK HAWAII, 11V .MAItSTOX
OA.MI'IIHIJ.. sri'KJMXTKXDKXT OK IM'IIUC
WOKKS, r. 77 A' III'X. Hdervdl Questions fiom Circuit .
Court, Kir.! Circuit. Oral motion to amend decision. Argil d
Xovember L'-, 10 10. , De, child Xovember M, 1010, llart
'well, C.I., I'erry and Do Holt, .1.1. Per curium: The de
cifion. as filed, ij jhat the circuit judge "is advisedi thill the
'", fifndaut's motion fo,r judgment should', be denied and juda-
'nicnt given for plajqlilT a prayed." 'I,'he niotiin it tint the
-'ilinetifn that judgment be givin for plaiutilT as prayed b'
ilriclun out, difindaul stating in favorlof the motion that it
is, his desire to pjijsinl in the lower court the further defeines
"t.!) "th.it the cac oft'VVn ilory v. llioirn., I!) Daw. 11, should
1 the overruled: t'J)' thit no recovery can bil bad for the rates for'
' the period hiili'dim ut to tin dale of the tjomuu nce'iuent of this
nclion. and ('') tb.il tin slnliite of 1001 is uncon-lilnlioual in
pievidiug for eiialties for deliuqmnt rate'. The question n
luting to the penalties was a rutted at the tearing upon the re
served questions and was considered by the court. The estoppel
found to exist concerning the selling up of the uneoutitiiliou
ality of tin Htatute of 1001 applies with reference to the so
called "penalties" as well as to the ouliuary rales. The "pen
alties" are simply additional charges prescribed to be paid in
the i vent that the ordinary rales ate not paid within the time
stall (1. Such additional charges are ,t pint of the sums agreed
to be paid by the dofcuduiit in the contract sued on. The
statement of question reserved was appaieutly prepared on
the theory that the parties hid presented all of their claims
and defen-osin the lower Cmirf, and that the dieision jif this
.court should ht(iriuliie1 finally the issues between them. Qu's
lion three asks, "Should defendant's motion for judgment be
granted, or should judgment Ik' given for plaiutilT as pr.iyeiU"
TJie decisidnvMeai'ly 'responsive to this question, answers the
lii.-it,,(ltei'niilivc in the negative and the sivoiid in the allirnir
alive. ' 1 "
J'h 11'. Fulton, Prpulu ,ttrnC! tlrnrnil, for the Terrliory.
1, iitLlfitlfmi it' Wrarrr for defendant.
, iru ' ' . iy tho (nun,
...vi i' .!.".' :...'.
EVERY LOW, DAMP SPOT IN
s a breeding place for moiquitccs, Hnve th(se places
v. m. rvw
Liquor Commissioners Hold
Session and Warn;
Al tho meeting of tho Hoard of
Liquor License CoininlsHluneis yes
terday Wlllnrd U. llrown was elected
chnlrmun In ptneo of Clureiico Cooke,
who Is leaving tho Territory for nn
extended absence on tho mnlnlnnd. In
accenting the position Mr. Ilrm.ti tut
eil ho would ho willing to tcre dur
ing tho nbaenco of Mr. Couko, hut
wmild retire In faor of tlio lonner
chairman upon Mr. Cooko'a return.
O. I-., Sorcnson took his scut its
commissioner nt tho meeting yestcr
duy, hnvlng been npiioluted to 1111 tlio
viicnticy on tho Hoard ci cited by tho
r. slgnatlon of Alfred CuBile, who wns
elected to thej House of ItcprcEcntu
thes ut tho last election. ,,
He.eral violators of tho liquor reg
ulations wcra before tlio llourd yes
terday thrpugh tho iictUltles of In
spector l'ennell. Monlis or thu Walpn
liu Biibon wns wurncl that ho would
lai.e to roguhito (he reining of looms
uboro his Baloon and Inuo the buloun
portion moro clenniy
Mike 1'aton ol thu llncoro was told
that i.o would li.no to remino nil
elinlrii and tables from the (.aioon, n
Binillcl, Injured In n brawl, halug
Icon found sleeping In a chair.
lunulas Mc'ligi.u lulled in appear
In answer to li summons fiom tho
l.o.n d, p being charged that he al
lowed u minor In enter his saloon, lie
lias a, m been iciuicslcd in Ktun thu
liunkliig that Is said to bu douu by
linli'icrb In Hie lot to tnc tear of Uo
l.ertlm Klciume, In rcspoiibu to u
notliieiilloii I nun tho llo.iul, stated
t ut' h sliu was s,oppcd from selling
i, ..o. in p.ickiigcs in bu ((iiiHiiini'it on
l i) prumlros it would ruin tier bust
liivr.rf. T.iu iloaiii iiMiibcH lo inaku nil
exreilluii, liowotei, and Mrs. Klcuuiu
i ii l obaervi Me regulations that up
Kuw.ird Miin did not obtain a I'-?-eii.se
lor n saloon ut W'nlptihu. KJnu
ivus alleged lo have charged Chief
l.iigini'or Seovllje of tho plalitallnn
w.Ui foielug signatures to u protcbt
iih.iliitt tho 'llccnio nnd Scolllo was
on build yesterday to deny thu alle
gation, l'lnn didn't gel tlie license.
".'.Ut II ii 1 1 1' t I ii l per ( 1'i.r.
Importers, Manufacturers, and Retailers of LADIES',
CHILDREN'S and INFANTS' WEAR. 3
No matter it you arc in Sail" Francisco or at Home'
do your shopping at "Magnin's" f
Wc carry a vast variety of the lest stjlcs and best values in ;
'Ladies' and Gentlemen's Handkcrrhicfs. '
Wc advise nn early purchise fcr your Holitiy Gifts, in order 5
to give us plenty of time for Monognrmg.
All plain handkerchiefs over 50 cents, cither Gentlemen's or "
Lidics', initirl free, I
All Packages to tlio "Islnnds" will
bo sent frco of charge
Send for our Infants' nnd Children's Wear catalogue, i
Grant Ave. and Geary St. San, Francisco, Cal.
OUR sock of WHOLESALE CANDIES, from
which sweets for Sunday School
and Church CHRISTMAS TREES can be
selected is now complete. Remember
the Palm Test is "THE BEST."
Phone for a Mcsscnrjcr- Boy. We deliver,
y cvcryininy. bncciai rates jor delivering
Xmas Goods. Agents Alexander Young
TO THE PUBLIC Wc wish at this time to express our appreciation to
the Island public tor the confidence reposed in' us, as manifested by the
large number of purchases of the motor cars we deal in. Altogether in the
past wo have handled some ten different makes of cars; wc now handle
There is a r.ason for this.
To handle any new make that was produced seemed to us too much like
"trying it on the dog" with the public as the Dog.
Our policy was to study the situation carefully, gauge local conditions!;
and then consult the best automobile authorities in America with' tho
result that we represent today
The Pierce Arrow- :
(All Licensed Under Scldcn Patent)
These three great makes represent a combination ol best practico' In
automobile construction, with the widest choice of body types and prices.
The manufacturers of these three great makes arc the leaders in the in
dustry. By handling only these three great makes wc can do justice both to the
public and the manufacturers. '
There arc from five to eight thousand different parts, in an automobile
multiply this by ten, and the number is cnornipus. Few dealers if any
coti'd keep even the necessary parts of ten makes to provide against inev
itable accident, but with three it is different. .
We wish our name to be synonymous with the
GOOD AUTO SUNDRIES AND GOOD SERVICE. , . , '
V M'fit-i.1--.' '-
H!11' t1 '"
l r i'Mxi.,.n..i Wini