The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-01-09
Hawaiian Gazette Supplement- Jan. 81

the illegal creation Of debt which they in com
mon with other property holders Of the county,
may otherwise be compelled to pay, there Is at this
day no serious question The right has been rec
ognized by the State Courts in numerous cases and
from the nature OF the powers exercised by mu-
nicipal corporations, the great dangers Of their
abuse, and the necessity Of prompt action 70 pre-
vent irremediabo injuries, II would seem eninent-
ly proper for Courts Of Equity to interfere upon
the application Of the taxpayers Of county to
prevent the contamination Of a wrong, when the
officers Of those corportions assume in excess Of
their powers, to create burdens upon property
holders, The Courts may be safely trusted to
prevent the abuse Of their process in sueh cases"
Another United States supreme Court authority
is..U. ?. Rail Road Company Hall, 81 Z. s. 3i3,
in 1875, where Strong, j. says;
There is decided preponderance Of American
authority in favor Of ths doctrine that private per
sons may move for 4 mandamus 10 enforce public
duty, not due TO the Government As such. without
the intervention Of the Government law officer"
1t Is apparent that If there is to be a proceeding
in the case at bar, it must be brought by some
other person than the Attorney General. The
Attorneys General is bound by the statute defining
his Office to appear in defence Of actions brought
against government officers. He does so in this
case and the respondent herein acts under the di-
rection Of the King in Cabinet Council, Of which
the Attorney-Genoral is a member
But docs the Jurisdiction of the Court extend to
the Kings Minister, acting under the direction Of
the King in Cabinet Council' He Is an Executive
officer, at the head Of one Of the Departments Of
the Government, and the Constitution provides
that the three branches Of the government, the
executive, the legislative, and the judicial, shall
be forever distinct We find eIplication Of the
state Of this question in Highs Extraordinary
Legal Remedies Sec. lis to this effect;
Tho jurisdiction Of the Courts by mandamus
over executive officers, including Governors Of
States, heads Of the executive departments Of the
the general government, etc, has given rise to
questions Of much difficulty, and not little con-
fict Of authority has resulted from the efforts OF
the Courts TO apply the law Of mandamus to such
cases. Especially is there difficulty with regard
to the control Of the Courts by mandamus over
the Chief Executive Ii is settled, and il was
conceded by all counsel in argument Of the at
bar, that mandamus would not lie 20 compel
purely executive political functions and duties
necessarily involving the exercise Of official judg
ment and discretion.
The respondent here Is not the Chief Executive,
aud We must look for or prcccdents to cases
where mandsmus has been sought 20 be applied 70
the heads 81 tho executive departments, such
cabinet officers and state secretaries. The writ
has been granted in England 10 the Lords ot the
Treasury, to compel payment Of pension; sup
ported on the two grounds, Of clear legal right
on the part OF the claimant, and the absence Of any
adequate remedy at law, in the ordinary course of
/ proceedings. See Ad & FL, 2SG; also Regina
| The Lords Of the Treasury in re the Queen DOwG-
gers Annuity, reported in { Eng. Law * Eq-r
where Lord Campbell c. ]. said objection
issue the writ Of mandamus TO the Lords Of tho
| Treasury.
| The absence Of other remedy is always strong
consideration in the application Of extraordinary
remedies. The remedy Of impeachment Is sug-
g1stod for this case. II these bonds shall be issued
/ illegally and at loss to the taxpayer Of the
kingdom, the impeachment Of the Minister, il car
| Ticd while il discredits him, does not make good
the loss 20 the country nor recall the bonds; and
the Minister may not be in office when the Lcgis-
! lature next meets. Impeachment would not be an
| adequate remedy. Do other remedies lie; and is "a
| Cabinet Minister amenable to the Court?
Our own statute concerning Mandamus, Chap.
SO Of the Acts Of 1876 Section is that 1t the
writ may be directed TO public officers to compel
them TO fulfI any Of the duties attached to their
office which may legally be required Of them.
II a Minister is public officer he must be incud-
cd, for he is nowhere excluded from the force Of
the above provisions. 1t Is claimed for him that
be is not in that respect public officer, for he is
part Of the head executive, and the Crown is not
personally subject TO the jurisdiction Of the Court
But the Constitution provides that the Ministers
are responsible. 1t would be intslcIable doc
trine in constitutional monarchy, to extend the
inviolabiity Of the Sovereign to his Ministry; to