
    NO. 10.
    TERRITORY OF HAWAII, BY MARSTON CAMPBELL, SUPERINTENDENT OF PUBLIC WORKS, v. TUE BUN.
    Reserved Questions from Circuit Court, Eirst Circuit. Oral motion to amend decision.
    Argued November 22, 1910.
    Decided November 23, 1910,
    Hart-well, C.J., Perry and De Bolt, JJ.
   Per curiam:

The decision, as filed, is that the circuit- judge “is advised that the defendant’s motion for judgment should be denied and judgment given for plaintiff as pr.ayed.” The motion is that the direction that judgment be given for plaintiff as prayed be stricken out, defendant stating in favor of the motion that it is his desire to present in the lower court the further defenses (1) that the cgse of Territory v. Brown, 19 Haw. 41, should be overruled, (2) that no recovery can be had for the rates for the period subsequent to the date of the commencement of this action, and (3) that the statute of 1904 is unconstitutional in providing for penalties for delinquent rates. The question relating to the penalties was argued at the hearing upon the reserved questions and was considered by the court. The estoppel found.to exist concerning the setting up of the unconstitutionality of the statute of 1904 applies with reference to the so-called “penalties” as well as to the ordinary rates. The “penalties” are simply additional charges prescribed to be paid in the event that the ordinary rates are not paid within the time stated. Such additional charges are -a part of the sums agreed to be paid by the defendant in the contract sued on. The statement of questions reserved was apparently prepared on the theory that the parties had presented all of their claims and defenses in the lower court and that the decision of this court 'should determine finally, the issues between them. Question three asks, “Should, defendant’s motion for judgment be granted, or should judgment be given for plaintiff as prayed ?” The decision, clearly responsive to this question, answers the first alternative in the negative and the second in the affirmative.

B. W. Button, Deputy Attorney General, for the Territory.

Magoon & Weaver for defendant.  