I

N ERROR to the Supreme Court of the Territory of Hawaii to review a judgment overruling exceptions from the Circuit Court of the First Judicial Circuit of that territory, and to review a previous order of the Supreme Court of the territory, reversing the order of the court below, granting a new trial. Dismissed for want of jurisdiction.

See same case below, 17 Haw. 618.
The facts are stated in the opinion.

Hume v. Bowie, 148 U. S. 245, 37 L. ed. 438, 13 Sup. Ct. Rep. 582; Coughlin v. Dis

Mr. Charles A. Keigwin argued the trict of Columbia, 106 U. S. 7, 27 L. ed. 74, 1 Sup. Ct. Rep. 37.

cause, and, with Mr. William B. Matthews, filed a brief for plaintiffs in error:

The question, What amounts to a judgment? is, of course, one of local practice. If, by accepted usage in Hawaii, or in the supreme court of the territory, such a minute entry as appears in this record is regarded as a judgment, then that entry, however meager or technically irregular, may, and should, be accepted as a judgment

of that court.

Wheeling & B. Bridge Co. v. Wheeling Bridge Co. 138 U. S. 287, 34 L. ed. 967, 11 Sup. Ct. Rep. 301; Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. ed. 822.

It is immaterial whether or not the judgment is ever spread out upon the formal minutes. The neglect of the clerk to mold the original notation into the conventional form of judgments, and to clothe it with the language generally used for that purpose, is the neglect of a purely ministerial duty, which does not at all impair the validity of the judgment minuted.

Freeman, Judgm. 4th ed. §§ 38, 40; Casement v. Ringgold, 28 Cal. 335; McMillan v. Richards, 12 Cal. 467.

And such an order may be revised in erin acting upon the motion for a new trial, ror when it appears that the lower court, proceeded upon an erroneous theory of its powers and duties in the matter, or upon incorrect principles of evidence and prac

tice.

Metropolitan R. Co. v. Moore, 121 U. S. Mattox v. United States, 146 U. S. 140, 36 558, 30 L. ed. 1022, 7 Sup. Ct. Rep. 1334; L. ed. 917, 13 Sup. Ct. Rep. 50.

Mr. Charles R. Hemenway argued the cause and filed a brief for defendant in er

ror:

The practice in Hawaii as to exceptions is similar to that in Massachusetts and the other states, where bills of exceptions bring up to the appellate court for review certain specific rulings only, and do not bring up the entire case, including the final judg ment rendered. In such states writs of error from this court have run to the court where the final judgment was entered.

Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265; Wurts v. Hoagland, 105 U. S. 702, 26 L. ed. 1110; Polleys v. Black River In some of the states no record is ever Improv. Co. 113 U. S. 83, 28 L. ed. 938, made up; that is to say, the original minute 5 Sup. Ct. Rep. 369; Stanley v. Schwalby. entries are not drawn out into formal or- 162 U. S. 255, 269, 40 L. ed. 960, 965, 16 ders and judgments. Such is, or at one Sup. Ct. Rep. 754; McDonald v. Massachutime was, the usage in Maryland and Penn-setts, 180 U. S. 311, 45 L. ed. 542, 21 Sup. sylvania, and it was so formerly in the Ct. Rep. 389; Rothschild v. Knight, 184 U. District of Columbia. In such jurisdictions S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391. the files and journal entries stand in place of the record, and memoranda indicating the rendition of judgments are treated as judgments.

Washington, A. & G. Steam Packet Co. v. Sickles, 24 How. 340, 16 L. ed. 652; Cromwell v. Bank of Pittsburgh, 2 Wall. Jr. 569, Fed. Cas. No. 3,409; Boteler v. State, 8 Gill & J. 381; Ruggles v. Alexander, 2 Rawle, 232; Freeman, Judgm. § 86.

It has long been agreed that while the entries and memoranda gave data from which a record as technical and prolix as any ever drawn in the court of King's bench could be readily constructed, they ought to be regarded as competent and satisfactory evidence of the judgment, and of

It is the settled rule that a judgment, to be final within the meaning of the acts of Congress giving this court jurisdiction on writs of error over such judgments, must terminate the litigation between the parties on the merits of the case, so that, if this court affirms such judgment, the court below will have nothing to do but to carry it into effect.

Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Macfarland v. Brown, 187 U. S. 239, 47 L. ed. 159, 23 Sup. Ct. Rep. 105.

Mr. Justice White delivered the opinion of the court:

The errors assigned are directed to the

judge, stating his reasons for granting a new trial, which opinion was also filed. In the following April the defendants moved the court, then presided over by the successor in office of the judge who had tried the cause, to make a formal entry of the granting of the new trial, and this was done over the objection and exception of the plaintiff, who thereupon prosecuted a writ of error to the supreme court of Hawaii. The supreme court, after overruling a motion to quash the writ, based on the ground that the action of the court in granting a new trial was not reviewable (17 Haw. 374), on March 8, 1906, reversed the order granting a new trial. Putting out of view all other questions, in substance, it was held that the filing of the bond within ten days, as required by the statute, was essential to give the court jurisdiction to entertain a motion for a new trial, and that the court had mistakenly decided that the ten days began to run only from the date of formal entry of the judgment. 17 Haw. 445.

action of the court below on two subjects. | judge expired on March 2, 1905. A few Jurisdiction to consider them is challenged days thereafter, viz., on March 4, 1905, the by the defendant in error. To understand clerk received by mail the opinion of the the question as to jurisdiction and the issues which it will be necessary to consider, if it be that we have power to decide the merits, requires us to state briefly proceedings which are referred to by both parties and which are embraced in the printed transcript, without determining at this moment how far all the proceedings thus to be referred to may be considered as properly embraced in the record in the legal sense. 167] *On May 27, 1904, as the result of a trial before a jury of an action brought by the territory of Hawaii to recover damages for the loss of a dredge boat belonging to the territory, through the negligence of the defendants (who are now plaintiffs in error), there was a verdict in favor of the territory for the sum of $25,000. On May 31, 1904, the defendants filed a motion for a new trial, and gave notice that it would be called for a hearing on June 3. On that date the motion was continued to June 7. On June 7 the territory objected to the court entertaining the motion because the defendants had not complied with § 1805, Revised Laws of Hawaii, requiring that the party against whom a verdict or judgment had been rendered should, as a prerequisite to moving for a new trial, "file within ten days after rendition of verdict or judgment" a bond securing the payment of costs, and conditioned against the removal or disposition of any property within the jurisdiction, subject to execution. The defendants there upon asked further time to file the bond. On the same day the court entered a formal judgment on the verdict, and also granted, over the exception of the plaintiff, the request of the defendants for further time to

The formal judgment entered in the supreme court was simply one reversing the order for a new trial. Thereupon, in the trial court, the defendants moved to be allowed to make the summary bill of exceptions which they had previously taken more specific. Over the objection of the plaintiff this was allowed to be done, and the defendants thereupon filed an amended bill of exceptions, which was allowed, and upon this bill, conformably to the Hawaiian practice, the exceptions were taken by the defendants to the supreme court of Hawaii. In that court a motion was made to quash the bill of exceptions, on the ground that, as amended, it embraced matters not legally included within the bill as originally filed, and which were, in consequence, not cognizable. This motion was overruled, on the ground that, although nothing was open for review on the amended bill but

make and file the bond. The court was of the opinion that the statutory period commenced to run only from the date of the entry of judgment on the verdict. The bond was filed on June 7, the motion for a new trial was renewed on the same day, and was ultimately taken under advisement. The such questions as were legally incorplaintiff, reserving the benefit of its excepporated in the original bill, the bill tion as to the power of the court to consider as amended could not be quashed,[169 the motion, agreed that the motion might as it undoubtedly presented matters be passed upon in vacation. Meanwhile the which were embraced in the first or defendants presented and filed a summary bill of exceptions relating to certain errors summary bill. 17 Haw. 645. Thereafter, which it was alleged had been committed on the hearing of the exceptions, the court by the court during the trial. In February-excluding from consideration such matters following, the judge who presided at the as it held were not contained in the original trial, and who was detained in San Francis- bill, although incorporated in the amended co by sickness, telegraphed the clerk of the court that he granted the motion for a new trial, and had forwarded his grounds for doing so by mail. This telegram was filed 168] by the clerk. The terms of office of the

bill-decided that the exceptions were without merit. 17 Haw. 618. Conformably to the opinion an order was entered in the minutes on September 27, 1906, overruling the exceptions. Thereupon the present writ

Miners' Bank v. Iowa, 12 How. 1, 13 L. ed. 867; Lyons v. Woods, 153 U. S. 661, 38 L. ed. 858, 14 Sup. Ct. Rep. 959; United It has been said by this court more than States v. Church of Jesus Christ of L. D. S. once that the power of amendment of char-5 Utah, 373, 15 Pac. 479; Atlantic & P. R. ters may be exercised where it will not Co. v. Lesueur, 2 Ariz. 428, 1 L.R.A. 244, defeat or substantially impair the object of 2 Inters. Com. Rep. 189, 19 Pac. 157. the grant or any rights which have vested under it.

Peacock v. Pratt, 58 C. C. A. 48, 121 Fed. 776; Talbott v. Silver Bow County, 139 U. S. 438, 35 L. ed. 210, 11 Sup. Ct. Rep. 594; Atlantic & P. R. Co. v. Lesueur, supra; Silver Bow County v. Davis, 6 Mont. 306, 12 Pac. 688.

(c) The tax assessed and in controversy here is not upon the franchise of appellant as such, but upon the combined property of appellant as an enterprise for profit.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a judgment affirming a decision of the tax appeal court and sustaining a tax upon the appellant. The appellant objected to the tax on the grounds that its franchise was derived from an act of Congress, and therefore was exempt from taxation, and that its charter also exempted it in terms. These objections, taken below, were argued at length

before us.

this part of the objection to the tax, except to remark that, in view of obvious purpose, it properly was admitted that July 7 was not excluded from the ratification by the word "between." See Taylor v. Brown, 147 U. S. 640, 37 L. ed. 313, 13 Sup. Ct. Rep. 549. For it also was admitted at the argument before us that, if there was no exemption in the charter, the appellant had no case, and we are of opinion that there

was none.

The tax in question is a property tax, and the effect of the decision is to uphold a valuation of the whole property as a going concern, and as more than a mere congeries of items; or, in other words, an addition of half a million dollars to the appellant's valuation, for the franchise of the company. The appellant says that this was contrary to § 17 of its charter, construed in the light of the scheme disclosed. That section provides that "the following charges shall be lawful upon the income of said railway: 1st The charter was granted by the Republic The expense of operating, repairs, renewals, of Hawaii on July 7, 1898, the day on which extensions, interest, and every other cost Congress passed the resolution of annexa- and charge properly or necessarily connected tion [30 Stat. at L. 750], and doubts having with the maintenance and *operation [143 been felt as to the right of the Hawaiian leg of said railway. 2d. Dividends may be paid islature to grant a charter at that time (see to the stockholders not to exceed 8 per cent 22 Ops. Atty. Gen. 574; Id. 627), the organic on the par value of the stock issued. 3d. act declared that "subject to the approval A sinking fund may be created for the reof the President all franchises demption of any bond which may be issued, granted by the Hawaiian government in con- or other record debt, and the capital upon formity with the laws of Hawaii, between the expiration of the franchise. Provided 142]the seventh day of July, *eighteen [that the amount is limited as set forth]. hundred and ninety-eight, and the twenty- 4th. The excess of income shall be divided eighth day of September, eighteen hundred equally between the government of the Reand ninety-nine, are hereby ratified and con- public of Hawaii and the stockholders of firmed." Act of April 30, 1900, chap. 339, said corporation." It is said that here is § 73, 31 Stat. at L. 141, 154. It is cona complete plan for the division of the intended that the effect of this section was come, declaring what charges shall be lawto make the charter an act of Congress by ful, and that only such taxes are allowed as adoption. In our opinion this is a mistake. fall under the words, "other charge propThere is no doubt that local legislation un-erly connected with the maintenance and der the authority of Congress previously operation of the road." granted is treated as emanating from its immediate, not from its remote, source, in determining rights and liabilities. Kawananakoa v. Polyblank, 205 U. S. 349, 353, 354, 51 L. ed. 834, 836, 27 Sup. Ct. Rep. 526. See Re Moran, 203 U. S. 96, 104, 51 L. ed. 105, 108, 27 Sup. Ct. Rep. 25. A general ratification like that of existing laws in § 6 would have no greater effect. We discover nothing in the words just quoted from § 73 to indicate that Congress had this particular franchise in view, or meant to adopt it and give it a superior source, or to do any thing more than to supply the power that by accident might have been wanting. See Miners' Bank v. Iowa, 12 How. 1, 8, 13 L. ed. 867, 870; Murphy v. Utter, 186 U. S. 95, 106, 46 L. ed. 1070, 1077, 22 Sup. Ct. Rep. 776. We need not pursue further

The taxes authorized as such charges are thought to be limited to a license tax not to exceed $10 on each passenger car used, imposed by § 31, and to the provisions of material produced in and imported from the § 30. The latter section exempts from duty United States, and goes on to say that "the property of said association and others shall not be liable to internal taxation while said railway is under construction, provided that, as fast as completed and equipped, the completed and equipped portion shall become liable to such taxation." It is said that, when the charter was granted, real and personal property were assessed for taxation "separately as to each item thereof for its full cash value," with provisos deemed not to be material (Rev. Laws,

[For other cases, see Appeal and Error, 488,
489, in Digest Sup. Ct. 1908.]
Error to Hawaiian supreme court
Federal question.

2. The failure of the record to show that any Federal question was raised or suggested before the assignment of error in the Federal Supreme Court precludes the maintenance of a writ of error from that court L. 141, chap. 339), § 86, to review a judgunder the act of April 30, 1900 (31 Stat. at ment of the Hawaiian supreme court. [For other cases, see Appeal and Error, 1044, 1045, in Digest Sup. Ct. 1908.] [No. 22.]

vember 16, 1908.

N ERROR to the Supreme Court of the Territory of Hawaii to review a judg ment which affirmed a decision of the Tax Appeal Court of the First Judicial Circuit of that territory, sustaining an income tax, Dismissed for want of jurisdiction.

Hawaii, 1905, § 1216); that § 30 contem- the jurisdictional amount prescribed by plates a taxation of this kind, and that a that section. taxation of the franchise would be double taxation, and was excluded. It is true that one of the provisos in § 1216 taxes going concerns as wholes, but § 30 is thought to show a choice of the other method. It is contended that the charter, by fair implication, contracts against any other charges, especially in view of the ultimate division of the excess of income, after the payment of 8 per cent dividend. If the dividends do not exceed 8 per cent, the tax will fall wholly on the stockholders, contrary to the fair understanding of what the charter holds out. 144] *The argument, of which we have giv- Argued October 28, 29, 1908. Decided Noen a summary outline, is far from establishing such a clear renunciation of the right to tax as the cases require. New York ex rel. Metropolitan Street R. Co. v. New York State Tax Comrs. 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. Rep. 705. It appears to us very questionable whether the phrase, "charges properly or necessarily connected with the maintenance and operation of the road," has any reference to taxes. It points in an other direction. Taxes are left unmentioned in § 17, and the liability to them is assumed. The language of § 30 does not import the imposition of a tax that otherwise would be excluded. It takes the liability for granted, and relieves the company from the burden for a certain time. The drift of the section cannot be made clearer by lengthy restatement. It starts with exoneration and merely saves the right to tax the portions completed by a proviso which, in this case, fulfils the proper function of that much-abused term. If any doubt were raised by § 17, which does not seem to us to be the case, it would be relieved by this further section of the same act. Nothing else seems to us to need mention in the present posture of the case. Judgment affirmed.

See same case below, 18 Haw. 15.
The facts are stated in the opinion.

Mr. David L. Withington argued the cause, and, with Mr. William R. Castle, filed a brief for plaintiff in error.

Mr. Aldis B. Browne also argued the cause for plaintiff in error.

Mr. Charles R. Hemenway argued the cause, and, with Mr. Mason F. Prosser, filed a brief for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This case is intended to bring up a question of deductions from gross income in assessing the income tax of the appellant, as well as that of the liability of the plaintaxes not mentioned in the charter has been tiff in error to the tax. The liability to disposed of by the preceding case. As to the former question, the plaintiff in error says that it has no net income liable to taxation. But the whole tax assessed was

HONOLULU RAPID TRANSIT & LAND $588.20, and therefore the case cannot be

COMPANY, Plff. in Err.,

brought here under the act of March 3, 1905, chap. 1465, § 3, 33 Stat. at L. 1035. On the other hand, the record does not show that any Federal question was raised or suggested before the assignment of error in this court, and therefore the plaintiff in error has no standing under the act of April 30, 1900, chap. 339, § 86, 31 Stat. at L. 141. It is true that, in the decision of the tax appeal court, it is said that the appellant

NOTE.-On Federal questions as sustaining the appellate jurisdiction of the Federal Supreme Court over territorial supreme courts-see note to New York Foundling Hospital v. Gatti, 51 L. ed. U. S. 254.