The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-12-19
THE GAZETTE MANDAMUs.
Supreme Court OF the Hawaiian Islands
AT Chambers.

AT
H. CK1EvE AND A. T. ATKINSON '. CHAs. I. GULIcE,
MEsIsTEE DEPAETsuST OF III ISTERIoE
Before Austin, J.-Opaii0s of the Court.
This case arises on a return to an order, issued
on the plaintiffs sworn petition, TO show cause
Why a wit Of mandamus should not Issue TO the
defendant, requiring him to present to the King
in Pnvy Council the plaintiffs petition for char
ter Of incorporation.
The return consists Of demurrer based upon
three grounds. The first ground Is technical and
shall nov consider II. Il Is alleged that the
petition fails 10 show a demand and refusal by
the defendant to do the act required Of him, and
the detendant.s counsel claims that tins IS fatal
10 the demand for a mandamus- have no ubt.
after eIaming the authorities cited by the counsel
on both sides, that substantial demand aud re
fusal must be shown
See Tapping on Madamus, ps. 332 to 3s6, and
the authorities cited.
As to the point that a demand should be shown,
the petition alleges that the plaintiffs, IN April,
1883, filed IN the Office Of the Minister of the De
partment Of the Interior, petition praying for q
charter Of Incorporation 10 be issued 10 the plain
tifs. and that they might be constituted body
corporate under the cooperate name Of the Ha
walian Gazette Company; and also filed the
several certificates as required by the statutes
thereto appertalning, together with the form Of
charter desired by the plaintiffs. Had the petl-
tion alleged IL addition that the petition praying
for a charter had been presented 70 the defendant
personally, the allegation o. a demand would have
been surely complete.
In tins case, was not the filing Of the petition
II the defendants department equivalent 10 a per
s0nal demand unless the defendant answers that
he never saw OF heard Of II
This branch Of the demurrer rests upon the idea
that upon demand It would be the duty of the de-
PENDANT to present the petition for charter. am
inclined 10 believe that the filing such petition IN
the defendants Office Minister Of the department
was ademand that II be presented sufficient to call
upon the defendant TO act. / think the defendant
may be presumed to have personal knowledge of
such petition filed in his department office.
High on Extraordinary Remedies, Sec. Il, says:
Il has been held that Where the duty Is plain and
SPECIFIC relating to an act which the law requires
Of pablo officers no demand is necessary
II should hold on the merits that It Is the pub
lie duty Of the defendant TO present petitions
for charters 10 the King IN prIyy Council, then
the filing of proper petition as alleged, think
would impose the duty Of presentation upon the
defendant. As 10 the point that there should be
refusal shown, the allegation Is that more than
sufficient time has elapsed wherein to enable the
defendant 10 present said petition, that numerous
meetings Of the PrIyy Council have been held since
the fling Of said petition, but the defendant has
utterly failed and refused and now fails and re
fuses to present said petition TO the King in Prvy
Council"
This is direct as to refusal.
Tapping on Mandamus PIP. S3i-5, says: that
there should be enough from the whole Of the
facts to show 10 the Court that for some improper
reason compliance Is withheld, and distinct de
termination not TO do what Is required
Of presentation rested upon the defendant at all:
Further: the allegation Of refusal Is OF a refusal
70 present the petition described which, IN itself
was a direct PRAYER TO the defendant TO issue the
charter sought. he could not refuse TO present It,
without knowing Its contents, and If he knew them
and refused think the demlnd and refusal com
plete.
If the petition Is true there can be no question
that the defendant with perfect knowledge Of the
PRAYER for charter, refused to present II to the
hing IN Pryy Council. hold that this is suifi-
cient under the authorities cited.
See hing vs. BreckTock and Abergaverrinc Canul
Co.. Ad. a Ellis, PIP. 2l7-22-S. High on Extraor-
binary Legal Remedies, Sec. Is, D. and Y. r. r.
Co. vs.. Plumas Co., 81 Cal. 354-62.
shall now consider the second and third grounds
Of the demurrer which arc on the merits
These grounds are IN substance that the Court
cannot grant mandamus because there Is no law
or statute, claimed, which requires the defend
ant 10 present the prayer for charter to the King
IN Priyy Council, and that whether such PRAYER
shall be 50 presented rests in the judgment and
discretion OF the defendant, and this Cont cannot
command HIM To present it.
The authorities are ample TO show, and it is con-
oeded by the plaintiffs counsel that if the act Of
presentation asked Is matter vested by law IN the
Judgment and discretion Of the Defendant the writ
of mandamus cannot be issued.
In one branch Of the argument Of the counsel
for the defendant they claim though inconsistent
with other parts Of H. that II Is doubtful whether
the Court has the power to issue mandarlus
against the defendant at all because lie is the head
of government department. Though formerly
a prerogatlve wit and not OF stTict right IN
England. vet practically now even there tie lyeu-
ing Of II Is matter Of strict right based upon well
settled principles of law, which are not deuarted
from. and IN the United States the wit has alWuvs
been one of strict right In this country, which /
Ike the United States, and unlike England, has q !
written constitution which governs King and peo-
pie, the issuing of the wrii is matter Of strict
right upon fixed rules Of law.
In England II has been held that no writ of /
mandamus could be issued by any court against I
the hing or Queen.
In the case OF the State of Mississippi<s. John
son, in the United States Supreme Court where I
an injunction was sought against the President 1
Of the United States TO restrain him from carving
out certain laws claimed to be unconstitutional |
lSec Wallace, p. i15-9S.) Chief Justice Chase
said: We shall limit our inquiry 10 the question
presented by the objection that the duty involved
Is matter OF discretion) without expressing any
opinion on the broader issues discussed in aruu-
neni whether, IN any case, the President of the
United States may be required, by the process of
this court, to perform purely ministerial act
under positive law, on may be held amenabIe
otherwise than by impeachment for crime
In this country think II an injunction or a
nandamas were asked against His Majesty, that
It ought probably 20 be denied.
IL Is stated by High, in his work on Extra Ierul
Remedies, Sec III, that IN the States OF Ohio
AlabaIna, California, Maryland and North Caro-
lima, the courts of last resort have held that man
damus will lie 10 compel the performance Of min
isterial duties by the governor OF the STATE. The
opinions quoted from 10 sustain this view seem 10
be based on sound principles.
However, High IN Sec 10, says that the courts
Of Arkansas, Georgia, Illinois, Louisiana Maine
Minnesota, New Jersey, and Rhode Island. have
held that no maudamus could issue against the
governor of State in any case.
The question, therefore, Of the amenabilitv of
the supreme head OF a state country to the law
OF mandamns Is strongly mooied, and must be
in doubt.
But that Is not the question here and in many
cases and almost or quite universally, il Is held
both IN England and America, that a head OF
department, including the Secretary Of State. the
SECRETARY of the Treasury, the Secretary of the
Interior, and the Secretary of the Navy, in the ,
I United States, can be compelled by mandamus to
perform purely ministerial acts eRioined upon
him by law.
In the case of Marbury vs. Madison, Cranch
;. ). c. r., lS7, decided in February ISS Chief
Justice Marshall said, 1T is by the Office Of the
person TO whom the writ Is directed, but the ua-
ire OF the thing to be done that the propriety OF
mined
In these clear words he struck the KEY note of
Al that has been decided since on tins point by
he supreme Court Of the United States and in
hat case it was held that James Madison the
Secretary OF State, should deliver to William
AiaTpuTf MS commission as justice Of the peace
II the county Of Washington, in the district of
Columbia, 10 which be was entitled by law and I
which being IN the custody Of the Secretary, he
duty.
The question then is, and the counsel for the de-
endant having seemingly denied, at last admits it.
Shether the act required by the Plaintiffs Of the
defendant IN tins case Is purely ministerial act
which the law requires him to perform, OF an act
esiing In his Judgment and discretion and it is
admitted that If the act required is ministerial a
nandamus must issue. 4
/ shall now address myself to this question. Ii |
las been well and fully argued by the counsel o..
10Th sides and the law cited is amply sufficient TO
urnish a basis for its decision. O
Article Is Of the Constitution provides as folloUs
The King conducts His Government for the
onnInon good; and not for the profit honor or pr
ate interest of any one man, family or class of \
nen among His snbiectsr'
Article Il provides:
Each member Of society has a right to be pro-
ecied IN the enjoyment of his life liberty aud 4.
roperty according to law
Section 81 of the Civil Code provides that 1T
hall be the duty Of the Minister of the Interior 10 +