The Hawaiian gazette., 1884-01-23
Supreme Court of the Hawaiian Islands
In Banco
THz HING, RESPONDENT vs.. Az LIS, ArPx1IASr.
Before Jris {. J., NcCaily asS Asstis T. J.-Opii-
isa n ~ Court D, AHsii4 J.

This case comes here on exceptions to the deeis-
ion OF the Court oyerruling motion to quash TIN
indictment against the defendant FOX perjury o.
the ground that It was not drawn by duly quail
fed Attorney General or his deputy.
The facts are conceded 20 be that IN May, ISL
Walter Murray Gibson, Minister of Foreign Affair
iHtsrfss, in place OF Edward Preston Attorney Gen
eral resigned, and that ne held the position. Anc
acted as such Attorney General TIL the October
Term Of the Court 81 Honolulu when By W. Aus
tin Whiting his deputy appointed, the Indictment
was presented and the motion TO quash it was
made.
The Court have carefully examined their decis-
ion IN Banco in Rex. vs.. VIM. hanaau Hawn L.
6sS in which Chief Justice Harris delivered the
opinion, and think they are bound by ii.
In that case John ;. Walker, Minister Of Finance
vas appointed Attorney-General HH iHtsriB and Q
motion similar to the motion made In this case Was
made and denied
The Chief Justice Saws, 1T is said that the Con
sritution cuutemplAtes that there should be four a
visers to the kinc-Cahinst Offcers and that Il Is
not conforming with the Constitution VIXEN two OF
these Offices are held by one person This may be
all very true. and Il may be that prolonged neg
lect 70 oil all the Offices would be neglect 10 per
form the duties required BY the Constitution II
this respect, bot II By no means follows that in
case Of vacancy occurring by death or otherwise
HIS Majesty must I'LL II up precipitately without
taking tine TO consider, and that he cannot dele
gate the authority 70 act for the time being to an
other Ministerial O6csr, that all or any OF the
We believe this to be sound exposition Of the
law.
It follows that Walter NJ. Gibson was duly ap-
pointed Attorney General BY His Majesty ana Be
gan to hold the Office IL rare. But il i nov said
on this motion to quSsh that the indictment Which
is matter between the King and people and the
defendant, and TO which Walter Murray Gibson Is
not party, the Court by this summary process shall
decide that owing 10 lapse of time he has becoms
only Attorney General ds faeia. and that he shall
be Ousted from office We think this cannot bs
so done.
In Fowler vs. Beebee ct al. Mass. Do. g5l-i
Parsons c. J. says that Mr.. Smith whose richi
to hold the Office of sheriff was Questioned eollat
erallyl : 10 party to this record For can he b
legally heard IN the discussion of this plea. al
though decision would as effectually decide OF
his title to the Office as If be we're party. Thi:
would be Judging man unheard contrary TO nat
urzl equity and the policy of the Law"
From considerations ike these arises the dis
tlnetio1 between holding an Office is flet0 and d
Jnrs,
I'VE do not decide whether he is sheriff d. j.,-, o.
the county Of Hampton or has intruded hirnsel
into the ONCE bat as OF opinion that be /:
sheriff N fact we hold that is sufficient
hent IN his Commentaries Vol. s. D. - szrs
In the case Of public officers WHO are such g
facfu acting under color of office BY an election o
appointment not strictly legal, or without haviul
qCAlined themselves by the requisite tests, or b
holding over after the period prescribed for new
appointment as IN the case of sherifs, coustahles
etc. their acts held valid as respects tie right
of third persons who have an Interest in them ~
as concerns the public, in order to prevent fail
ure of Justice
In Sheehzn's case which vas a motion, to dis
charge nan OF hahezs oorpus Who had been con
| yicted, as he ciained by Court which vas OIL,
Court Dc fHcfo. See IL Mass Do. 4j-6. GraI
C. j. decides as did c. J. Parsons N the 9Th Mass
case cited and says, 10 decide otherwise would b,
inconsistent with the convenience and securit,
| of the public, and further says. The approuri
ate form Of trying his right To exercise tie Office o.
a justice Is by information in behalf of the CON
nouvealth or perhaps by action against him b.
| the person injured
See also 3 Mass 81
The doctrine of these cases a. to officers d. f4st
land and America AID ve have found none ques
| tiorirg it.
See State rs. Carroll 5 Conn, pp. AZ, 454-s-s
where Butler C. J. makes an exhaustive exaraira
eng with the case OF The Able of Fourtaiue. n
ported N the Year Books IN 1881 where it Is believed
tie doctrine WAS nrSs established and reported AMI
nnds scarcely case against it from then TO HI
present time.
See woodside rs wasg, Il Name X. . y.
Brown vs. L11f, % Maine f., 4zi, tsSi. Pepin y
Lzcheuneyer, - y Y. r., pp- q. -. Nels5c. "
The People 3 \. Y. r., pp- $50
Ihsse authorities are sufficient OF which TO ever
rule the exceptions
In this case the defendant claims that he has II
remedy BY Qzo HaTrusfo, bscazse the officer 5 Ia
Attorney General, and he has charge o. moving fal
that remedy.
We are not called upon to decide uozz vlat rem,
edE the defendant might have. bet o-ly 70 decids
as to the validity of the remedy here so1sht Bal
the cases II the AID L. Mass r. cited are az
thoEIty for saying that the defendant Who l. ~,
Grieved might proceed directly to attack the ocei
who wrongs him
We think he would have szeh right under TIA
Constitution
The exceptions are oyerrzled.
v. 4. Whiting, Deputy AttoEuey-Geuerzl far
the Crown; HArtveIl, and Smith d Thn-stoa fos
prisoner.
Horolulu, January, Ilth, 1851