
    JAS. N. K. KEOLA, DEPUTY ASSESSOR AND COLLECTOR OF TAXES IN AND FOR THE DISTRICT OF WAILUKU, SECOND TAXATION DIVISION, TERRITORY OF HAWAII, v. A. H. LANDGRAF.
    Appeal erom District Magistrate oe Wailuku.
    Submitted June 26, 1911.
    Decided July 6, 1911.
    Robertson, C.J., Perry and De Bolt, JJ.
    
      Taxation — enforcing payment of tax unpaid when due.
    
    Where the amount of a tax is certain, and the liability of the tax-payer has become fixed, the tax being due and payable, an action of assumpsit for its recovery may be maintained under section 1269 of the Revised Laws, as amended by Act 89 of the Session Laws of 1905, though the tax has not become delinquent.
   OPINION OP THE COURT BY

ROBERTSON, C.J.

(Perry, J., dissenting.)

This case is controlled by the decision in Keola v. Maui Auto Co., Limited, just rendered.

On May 25, 1911, the plaintiff brought an action of assumpsit against the defendant in the district court of Wailuku, County of Maui, claiming the sum of $16.55, being the amount of income and property taxes assessed against the defendant for the year 1911. Judgment for plaintiff was given for the amount of the first semi-annual instalments of those taxes, which became delinquent on May 16th, together with the statutory penalties and costs. The plaintiff appeals and claims •that the judgment should have includéd, as well, the amount of the second semi-annual instalments of such taxes.

The amount of the tax was not the subject of any dispute. The liability of the defendant had become fixed. The tax was due and payable, and the mere fact that a portion of it had not become delinquent did not constitute a bar to the recovery of such portion.

E. W. Sutton, Deputy Attorney General, for plaintiff.

The appeal is sustained and the case is remanded to the district court of Wailuku with instructions to enter a judgment which will include the amount of the second semi-annual instalments of the income and property taxes of the defendant as claimed by the plaintiff-

Mr. Justice Perry:

I respectfully dissent, for the reasons stated in my opinion in Keola v. Maid Auto Co., Limited, supra.  