The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-02-05
SATURDAY, FEBRUARY 5, 1881
Supreme Court of the Hawaiian Islands
In Equity.
f. 2. ADAMS AND c S. BARLOW vs.. w. c
PARKE, COMMISSIONER IN THE ESTATE OF
C.. KANAINA, DECEASED.
Before the Wee Chancellor.
OPINION OF THE Court.

I AuCliOut6T5 II " tuS SAAh
that the respondent is intending to sell a large
quantity of land on the 31st January at Public
Auction which the plaintiffs urge Is an infringe
ment of their rights. The respondents mas plead
ed the order of the Chief Justice authorizing him
TO sell the land in question, as Commissioner In
partition of the Estate of Chas. kanaina, deceased.
The Statutes of this Kingdom impose a penalty
upon whoever, not being a licensed Auctloneer,
shall sell any property at Public Auction and a
Commissioner in partition is not speclncaily men,
toned among those to whom the oIatute ehah
not be- held to apply.
The first question is whether the plalntlns nave
such an interest in this matter as 10 entltle them
to ask for an injunction to restrain the respon-
dent from making the sale.
1t is urged by the respondent that the apphca-
ton of only one of the plaintiffs would not be
sufficient, for it would not be apparent that he
would receive the commission to sell this estate,
if it was to be sold by a licensed Auctioneer, and
therefore he would not be liable to be damaged
and further, that the two licensed Auctioneers
have not a joint interest in the subject OF this
suit SO as to entitle them to sue Jointly, because
they do not share the commissions.
/ am of the opinion that it is sufficient that all
the parties whose interests are alleged to be
affected are plaintiffs, (that is, all the licensed
Auctioueers of this Island } join in the bill.
1t is further urged that Equity cannot enjoin
the exercise of a particular privilege by an IN
licensed person when the statute provides ample
means for its prevention by q penalty and 1t is
suggested IldI I'll ulOhduCC VI LuIo IuJuuCllOu
would cover the case of traders at wholesale or
retail, who, if unlicensed, could by parity of
reasoning be restrained from thus trading on the
application of the licensed traders for an in
junction.
The onIy damage to themselves that such
petitioners could allege would be that the IN
licensed dealers, other things being equal, could
undersell them by the amount saved IN expenses
by not paying for q license. But q other things
are not equal for there are many other matters
H. - 49, NlA ane xah,nH usun h. n1unnko
to one person over another in trade, as a superior
location, for instance, and such O matter as this
is not an injury to any other merchant.
The Government desired to make revenue from
licensing such businesses, and TO secure the result
that all persons thus desiring to deal shall take
out a license, has imposed a penalty on whoever
shall sell ut wholesale or at retail without
licenses. No one person who is licensed can be
damaged pecuniarily by any one other person
who sells without a license, and therefore, this
cannot be claimed in behalf Of any number or the
whole number of those who are licensed.
With the case of Auetioneers it is somewhat
different. Ii the law allowed but two to exercise
this business, and these two joined in this petit
ton, there would be more reason in their claim,
for the amount by which they might be damaged
could be ascertained, it being the amount OF COM
missions Illegally received by the unlicensed
auctioneer. But the question OF apportionment
between them would remain, and as we have
seen, their interest is not joint.
The case ola private or public nuisance, where
Il right to petition for an injunction exists, is not
analogous. | am aware that where a franchise
is granted by the State which is infringed upon,
an injunction would lie,-but the franchise must
be an exclusive one by law, so that the infringe
ment would be a clear trespass upon the title.
u even between the filing of this petition and the
day OF sale, there should be other auctioneers
license granted, the prayer of the petition would
not be granted, because then it would not be
certain but that the sale might be made through
the newly licensed auctioncer, and in such case it
is clear the plaintiffs could not complain.
have grave doubts as to the right OF the petI-s
itoners to the relief prayed for, because, as | have
said, it is not apparent that they will suffer
damage, and the law has provided what the
Legislature has considered ample means of pro-
lection by prescribing punishment against per-
sons plying this vocation without q license.
The plea sets forth in full an order OF the
Chief Justice of this Court, dated the 9th Janu-
airy, 1880, by which it appears that the respon-
dent was appointed a Commissioner in partition
in an estate in course of Probate, and that he
was therein ordered to sell at Public Auction the
remaining estate of the deceased, in order that
the proceeds might be divided among the heirs,
it appearing to the Court that partition could
not be made without great prejudice to the
parties interested.
| do not admit that a Court of Equity, such as
is now invoked, is bound to respect whatever
order or decree, a Court Of Probate may make
without inquiring into it's authority or iurisdic-
ton. The fact that these widely differing
jurisdictions are exercised by the different judges
of one and the same Court, does not take away
from the judge exercising the Equity powers con-
ferred by law upon it, the authority to examine
into the decree made by the Probate Judge.
But on examination into the authority to make
the order pleaded l find it ample. Section $50
of the Civil Code conlers upon O judge of this
Court at Chambers, the authority to order n
sale under the circumstances described. The
Court cannot be expected to act as salesman, con-
veyancer, or auctloneer. 1t must act through
some one. In this section. as in many others of
our somewha meagre Code, the authority is Civ
en- and it is left to the Court either by general
rule or by the practice in particular cases to pre-
scribe the method and means by which this au-
thority shall be enforced or carried out. 1t is
evident that this sale must be by auction, to en-
sure public competition and a prompt settlement
of the estate.
1t is to be presumed that the Legislature in
tended to confer upon the Court the authority
necessary to enable it to enforce it's orders and
this, too, through officers of its own appointment,
so that it can be certain that they will be execut-
ed. If the Court were limited by the Statute to
make all the sales ordered by it through licensed
Auctioneers, the estate sold would be liable to
charges over which the Court would have no
supervision, and there could be instances imagin-
ed IN which, as in case OF illness or absence of
the licensed Auctioneers, the Court might not be
able to enforce it's DEGREES for want OF an Auc-
tioneer.
There is indeed nothing to prevent a Commits
sioner in partition, as also Executors, Guardians,
or other officers of the Court or persons acting
under its authority from selling through an
Auctioneer, providing the expenses are not there
by increased, and in many cases it would be to
the advantage of the estate to make the sale in
this way.
But to admit that the Court has the o-er to
enforce a sale of an estate at Public Auction, md
to hold that such a sale mus. Js saade through
a person, not its officer, and not anenahie 70 IL
authority would not be consistent.
| think the bill should be dismissed.
S. B. Dole for plaintiffs E. Preston fer res
pondent. A. FRANcZs JUDD,
First Associate Justice of the Supreme Court
and Vice. Chancellor.
Honolulu, January 29th, 1881.
FRESH CaLiF0RaI& FRUITS,
APPLES. POTATOES g. ONTGg