Polynesian., 1860-03-10
HONOLULU, MARCH TO, 1860
Ghe Aolpnesian.

Justice Allen.
In the matter Of J. T. WATERHoUsE.-PetitiOn for
tDrn Of mdnddmus.
The Chief Justice delivered his decision as fol-
lows:
The Petitioner sets forth that he was cited to
appear before Rob't. G. Davis, Esq, Police Justice
for the city of Honolulu the 9TH instant, at the
instance of William Webster, alleged to be Tax
Collector for one of the districts of Oahu, and
that the case was postponed till the 18th, when
said Webster introduced evidence against the pc
titiOner, and closed his case, whereupon the said
petitioner, being of opinion that he had no occa-
sion to offer any evidence to the Court, moved that
the complaint petition Of said Webster be dis
missed that the said magistrate thereupon defer
red judgment on your petitioners said motion till
the 18th, on which day he proceeded to give a
lengthy judgment on the said motion of your pc
titioner, in which said judgment the said magis-
trate averred or stated that the said Webster had
not offered evidence such would enable the said
magistrate to grant the prayer of the petition Of
the said Webster, and yet he refused to grant the
motion to dismiss, and ordered that the said Web
ster should bring before him other evidence to sup
port his petition, and that the order was made
without motion; against which proceeding petit
toner excepted and desired that the Magistrate
would certify the proceedings to the Supreme Court,
which he refused to do, and after the usual aver
ments of tender of costs and bond, "prays that,
the said Robert 6. Davis may be commanded to
certify to your Honorable Court the proceedings in
the case of VIM. Webster against John L. w ater-
house, together with his 1.-THE said Magistrate's)
decision in the premises-that is to say, on the
motion of the defendant, your petitiOner-and
your petitioner further prays that, when the said
proceedings may have been certified, the said de-
csion of the said Magistrate Robert G. Davis, Po-
lice Justice of Honolulu, as aforesaid, to wit
- that the said VIM. Webster may be allowed or
ordered, required to produce further testimony
in the case, may be reversed " and that the said
Police Justice may be commanded to give judgment
in the premises on the evidence which has been
adduced before him, at the instance of the said
plaintiff.
Whereup0n an order was issued to the Police
Justice to appear before the Chief Justice and
show cause why writ of mandamus should not
issue directing said Justice to give judgment In
the case of Webster Us. Waterhouse, the evil
dence already adduced, and that he should bring
with him the records of the proceedings had in
said suit.
The Police Justice appeared before the Court
and made substantially the answer following:
First. That there is not now, has there
ever been suit pending before him as Police Mag
istrate in which William w ebster, alleged
Tax Collector for one of the districts of Oahu, is
plaintiff and John T. Waterhouse is defendant, in
which he could render Judgment and that there
fore mandamus to compel him to give judgment
/
Second. That he brings into Court the record OF
proceedings as prayed for, and says that he does
not regard himself acting in judicial capacity
in the application for said order to SELL and there
fore is not bound by the ordinary rules of law in
admitting or rejecting evidence, or of those regu-
lating the mode of judicial proceedings.
Third. That a citation was issued by him to SAID
WaterhOuse, at the suggestion of the District At
torney of Oahu, to come in and show cause why
an order should not be issued to the Collector oil
Taxes To sell his property which had been seized,
that said Waterhouse might be advised that an ap-
| plication had been made for such order, that he
might appear if he deemed it right, &e., for his
interest to show cause why such order should
not be granted, if within his power, or that he
might take legal measures, if he desired to test
| the legality of the statutes of this kingdom for
the assessment and collection of taxes, or OF the
| proceedings of the Department or officers whose
duty it is to carry those laws into effect, but that
such citation, or summons, was not required to be
| issued by law and was therefore only an act OF
courtesy, and had this respondent granted the or
der pdrte without issuing such citation or sum
mons, it would not have been in the power of any
| Court of this Kingdom to set the same aside, and
had property been sold on such an order, the order
| of sale would have been held good, and had John
| L. WaterhOuse been injured thereby he could have
his remedy in the courts of the country, like any
other resident subject who has been trespassed
upon by his neighbOr.
Therefore the Respondent prays that the petit
| ton for a mandamus to compel him to certify to
this Honorable Court the proceedings against John
| L. Waterhouse trial before him alleged, on
the 18th day of February, A. d. 1860, and that
when the said proceedings have been certified, that
the decision Of the respondent that William Web
ster, Collector of Taxes, may be allowed TO pro-
duce further testimony in that may be reversed
and that this respondent may be commanded to
give Judgment in the premises the evidence be-
| fore him, may be dismissed with costs, and that
| the respondent may be allowed to discharge his
duty, as he is ready and willing to do, according
/ to law.
| The writ of mandamus is matter of discretion
with the Court, to be exercised upon legal and
| equitable considerations. It is certainly proper
remedy when an inferior tribunal refuses to act
upon a subject when brought properly before it,
| Supreme Court will never direct an inferior Tri-
bunal how to decide, but will require it to proceed
| to Judgment; mandamus will not lie to control
or the discretion of a subordinate tribunal.
| RI Wendell, 299; Cowen, $685. 523 IL Pick,
lS9. 1t is said by the respondent that he Is ready
and willing to proceed to the further investigation
of this case and will then give ud gment, but that
he has discretion to exercise in the mode of pro-
ceeding. 1t is general rule of practice in COM
mon law courts that when both parties have closed
and rested and arguments submitted it is the duty
of the Judge then to decide the case as present.
| ed, and this rule should be regarded As the re-
cord stands, the petitioner made motion to dis
miss, and that motion remains undecided instead
of doing which, the Court entered into legal ar
gument on the general question. and suggests to
the applicant for the order to sell to introduce fur
ther evidence. This is course not recognized by
legal tribunals. This motion, if properly enter
tanned by the Police Court, should have been de-
eided; still it is an interloeutory motion, and a
mandamus is not proper remedy to regulate the
proceedings as they are progressing. 1t can only
| apply when the Court refuses to decide.
| Where Court of inferior jurisdiction has no
power to grant new trial, after verdict on the
merits, mandamus will be awarded to compel
them to enter judgment. n Johnson's Cases, 1I9;
Peters, 635.l A District Judge in the United
States Court was ordered to reinstate cause.
make up the record. try the cause and enter Judg-