The Hawaiian gazette., 1875-04-21

n
The case Of Brewer vs. Chase, Haw,,
81, settles the law applicable to eoustrue-
7 ton Of such statutes IS these 1t is there
decided; at Is general rule. where the
common law prevails, that a statute rem
eiy Is merely cumulative, unless the CON-
mon law remedy is expressly or implicitly
repealed
"Bu, If a statute eonters a right aud an
I adequate means Of enforcing it, the stat.
ute remedy is exclusive, and il the enforc-
/ my tribunal is specified, that alone can be
reSorted to-" also derive this principle
+ from the case, that smother tribunal pro
yided for by the statute has merely con
current jurisdiction, unless there be ex,
preSs woris, or words from which it may
+ Be implied, that it was intended to be ex.
elusive.
When $ statute gives = remedy in the
affirmative, without negative, expressed
or implied. Tor matter which was action
Able at the eommOn law, the statute rem
/ eiv is considered IS cumulative" Chitty's
Pr, &c.
$50 if $ statute gives remedy in the
affirmative (withou, = negative expressed
or implied for matter which was action
able by the common law, the party may
sue 4; the common law" l Comyns' Di-
geSt, Stat c.
The various United States revenue stat
uteS hzve words ike the following, in de
scribing who shall distribute the shares to
informerS: "The Secretary of the Treas
ury shall determine whether any claimant
Is entitled to such share &c.
The Collector shall pay over and dis
tribute the sane, without delay, according
TO law Sc, Act Of Congress, 81 March,
1899, Sec, SO.
These statutes have never been held to
oGst the courts Of their Jurisdiction.
Vide Brevs,ervs. Gelson, II Johns, $50;
Lspbam " Amy, Is Allen, sol Sawyer
W Steele, Wash. C. c, 464.
But cur statute differs from those of the
United States in this, that it says that the
Collector General &idg 4 he judge Of the
legal rights Of the claimants. The statute
dos No, say that he Is to be the only
Judge Of these rights regari these
words S giving him no more Judicial au-
,hority thzn the similar words IN the Uni
ted Si4;es statutes; for : Collector in the
United States would have to be 4 Judge
Of the legal rights Of the claimants in Or
der to ascertain 10 whom "he shall pay
zri distribute" the sha1eS Of the fines
4ud foz.eitures.
lam no. convinced that the woris "of
which he shall be the Judge are mega
tive words expresseiIy or implicitly
creating an exclusive jurisdiction in the
Collector General
If the Collector General should alto
ge-her refuse 70 entertain the claim Of an
into-ner. OF dis4llOw /, IN toto, what rem
eiy would the informs- havee a man
danus from the Supreme Court would not
lie, for the Court eo1li not set directly
upon the Collector and control his judg-
ueut aui discretion His function in such
uzttsrs i not parely ministerial, but II i
10 S great extent j1iicial, and in aI such
csssS the execution Of the duty i not com
pellzb-e By msudam1& Decatur IS.
Pzulding, 10 Peters, +s7; BraShear rs.
MzSo1. Howard, q.
The s;z;ute itself mzkss no provision
fo- 81 zppszl from the Minister Of Fl
nance to 5 jury OF to the Supreme Court
n Bznoo, and Il the jurisdiction Of the
Collector General Is exclusive, 5 claimant
hzs 10 remedy beyond 81 appeal 70 the
Minister q Finance
Eveu Il I Sh01Id be satisfied thst the
Legislature intended 70 give the Collector
Geoe-zl exclusive jurisdiction over clziFlS
q these Ilf0-uers, they certainly have
n0t given hin sufficient power 70 make
his cozr1 adequate fer the enforcement Of
these rights, for the ls~ gives the C0llec-
TOT 10 power 10 s1muon parties, 70 sub
uE1s q sEezr Witnesses OF 10 p1ulsL Tor
oo1tenpt, &c i claimant might FIJI e.
ti-sly 4 seeming lis legal rights By his
Inability 70 seizure the atteldanoe OF an
unwilling witness be.o-s she Collector.
In dscEiiag thzt the jurisdiction o. the
P0l5os Court : Concurrent With thz- Of
tie Collector Genera II szeh cases, / also
hold thz1- before claimant can rss1rt 10
the to1r7s- lie uzst pgrs1s the statute
s-rietly and eKhzcst his remedy under Il
Hez3ert,ozrck - LznEt0n- 10 B. and c
81; ShaE y Gi1usI, Blstehfori AL
Plza 70 the Jurisdiction oTerrule1 and
case rs-z1isi 10 The Police Court q Ho-
10-zlz ~ trizL
a FRaSCIs JUDD,
Jzsties q tbs Sap-ele Cont. sitting 3
CEczt Juige q Ozhl
HoooIzlu, March ed. 1874