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

claim that what is directed to be done by the King
in Cabne; Council, and is done by any Of his Min
listers, Is to be TIT ated the personal act Of the
Sovereign. Art. ~. :" No act Of the King shall
have any effect unless it be countersigned by a
Minister, who by that signature makes himself re-
sponsible.''
The application Of the above quoted Section of
the Mandamus Act must be carefully made, ac-
cording to the principles partially expressed above
respecting matters OF discretion. The Courts will
not undertake to guide the Judgment and disere-
ton Of public officers, which would be 10 assume
the supervision Of all branches Of the Government
but will only intervene to compel the performance
q purely ministerial duties. Sec United States vs.
Gurthie, II How. 2s4; Brashear vs.. Mason, How.
%; Kendall vs., United States, 10 Pet 524; Decatur
Paulding, II Pet. 49T. To that jurisdiction the
Ministers Of the Crown and all other public officers
in this Kingdom are subject
But it must have been perceived that the Stat
ute, az which We have quoted Section g. as well as
all the authorities have cited refer to the per
Torrance Of some duty. This is indeed the nature
Of Mandamus, a command TO do something
What is it here prayed that the Minister Of Finance
be commanded TO do? First, to accept for such
bonds only United States gold OF its equivalent;
SECOND not to accept therefor the silver coins
aforesaid third not to issue such bonds except for
their par value in United States gold coin or its
equivalent.
These are all prayers for command to do not
certain acts act-that is, for a restraint or in
junction.
What is the province Of writ of Mandamus, as
compared with a writ of Injunction is set forth in
Section c, Of High, or" Extraordinary Legal Rem
edies."
"a comparison of the writ Of Mandamus, as now
used in both England and America, with the writ
OF Injunction discloses certain striking points Of
resemblance we'll Of divergence in the two
writs.Both are extraordinary remedies, the one
the principal extraordinary remedy of Courts Of
Equity the other Of Courts Of Law, and both are
granted only in extraordinary cases, where other
wise these Courts would be poweress to admins ter
relief. Both, too, are dependent, to certain
tent, upon the exercise Of wise judicial discretion
and not grantable as Of absolute right in all
1t Is only when come to consider the object and
purpose Of the two writs, that the most striking
points Of divergence presented. An injunction
I Is essentially preventive remedy, mandamus a
] a remedial one. The former is usually employed
TO prevent future injury the latter TO redress past
| grievances. The functions OF an injunction are to
I restrain motion and enforce inaction-those Of a
mandamus to set in motion and compel action. In
this sense an Injunction may be regarded a con-
sentative remedy, mandamus as an active one. The
former preserves matters in stdtu quo, while the
very object of the latter is to change the status Of
affairs and to substitute action for inactivity The
one is therefore positive remedial pr ocess the
other negative or preventive one"
We cannot command that the respondent Dor
row money and issue the bonds for it is clearly
discretionary with the King in Cabinet Council to
direct, and with the Minister to offer them. We
cannot compel the Minister to take United States
/ gold its equivalent, for he may not be able to
get It. II no takers found on the terms pre-
scribed, the bonds cannot be issued at all. II is
impossible to compel the Minister of Finance tt
take what is not offered. What was sought was tC
enun the Minister from taking silver half-dolIars
for gold par bonds, act which we have pronoun
! ced Illegal. But the distinction between mandam
Us and injunction must not be nullified. Th
Court is not Opposed to enforce technicalities. Bu
this IS not technically. 1t goes to the very es
sence Of the remedy applied for, and could properly
have been raised by demurrer, as il is a matter APP
parent on the face of the petition.
Here are two forms Of proceeding, having differ
eut origins and plain differences in application
The petitioners ask for the one remedy, while tn
case essentially demands the other. This issue o
mandamus on this state Of facts would afford
precedent for disregard Of modes Of procedur
| which it is important to preserve and for whicl
We find no authority.
The writ is therefore discharged.
4. T. JUDD,
LAWRENCE McCULLY,
Benz. II. AUSTIN.
Mr.. lIartwell forpetiiioners /; Mr.. Attorney Gen
] oral Neumann and Mr.. Preston for respondents.
Honolulu, January End, 1884.