
    THOMAS H. BRODHEAD v. WILLIAM BORTHWICK, TAX COMMISSIONER OF THE TERRITORY OF HAWAII.
    No. 2631.
    Submitted February 24, 1947.
    Decided February 25, 1947.
    Kemp, C. J., Peters and Le Baron, JJ.
   Per Curiam.

This is a writ of error to review a judgment of the circuit court in an action, tried jury waived, which was brought by the plaintiff-plaintiff in error, under the provisions of section 1575, Revised Laws of Hawaii 1945 (formerly section 571, Revised Laws of Hawaii 1935) to recover taxes paid under protest. The court rendered its decision and judgment in favor of the defendant on May 15, 1946, and the case comes here on plaintiff’s writ of error. This case was previously before the court as number 2583, on a writ of error filed by the defendant to review a decision and judgment of the circuit court in favor of the plaintiff. This court, by a decision rendered March 4, 1946, reversed the judgment appealed from and remanded the cause for a new trial, and on March 27, 1946, denied the plaintiff’s petition for rehearing. The previous decision was rendered by a majority of two judges, Mr. Justice Le Baron concurring in part and dissenting in part. The decision and judgment now brought before this court were rendered on the new trial pursuant to the remand of the case in number 2583. Another case, number 2581, which was consolidated for briefing and argument with number 2583 and also remanded for a new trial, is not now before this court.

The parties, by stipulation, have submitted the points raised by the plaintiff’s assignment of errors, now before the court, upon the arguments made by the respective parties in their briefs filed in this court in number 2583, and without oral argument. The majority of the court, Chief Justice Kemp and Mr. Justice Peters, are of the' same opinion as when this case was heard before, and the dissenting judge, Mr. Justice Le Baron, also is of the same opinion. On the reasoning stated in the opinion of the court, rendered March 4, 1946 (37 Haw. 314), and in the decision denying rehearing on March 27, 1946 (37 Haw. 351), the court holds that the assignment of errors in this case is without merit and accordingly the judgment of the circuit court, Honorable A. M. Cristy, Judge, is affirmed. A judgment in accordance with this decision will be entered upon presentation.

Hmith, Wild, Beebe cG Cades for plaintiff-plaintiff in error.

RJioda V. Lewis, Assistant Attorney General, for defendant-defendant in error.  