The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-06-24

CRowS LANDS VS.. >. H. ooPkH FL Ab'
1r-c,ly. J., Austin, J. Opinion Of tie Court ny
,sfiu,J The Chief Justice did Not st ~
this case.
This cause is an appeal in equity from the
decision Of Judge McCnlly.
The object Of the plaintiffs is TO enloln tne
coilection If judgement in favor of Bishop q
| Co AGAINST the plaintifs,-Crown Land Oom-
missioners-upon an execution which the DE,
PENDANT threatens to levy upon the lndlyld9ai
-,ronsrtv of one of the plaintiffs, c. ID. Judd.
Tbc defendants claim that the plaintiffs are
individually liable, and the plaintiffs deny H.
The Judgment sought to be restrained was
| far the breach of covenant for quiet ENJOY
rnpnt constrained in a lease between the Com
ynissioners of Crown Lands of the first part,
! and H. Z. Whitney and J. W. Robertson oil tie
firm az Whitney and Robertson, of the second
nart The lease recites that "They, the SAID
mart of the first part by virtue OF the auihor-
! ity in them vested by the act to relieve the
| the ROYAL domain from eDoumbrances, and to
render the same unalienable, approved Janu-
arv 3rd, 1865, have and do lease certain LANDS
in Honolulu to the party OF the second part
for the term OF ten years from January Isl,
| 1881, at the yearly rental OF SoVV, pa5auie
quarterly, and all taxes; which the rent par
ties Of the second part covenant that Ihey
will nav 10 the partv of the first part and their
successors in Office; and the parties of the first
mart further, for themselves and their success
ors in office, covenant for the quiet enjoyment
Of the land leased, by the party OF the sec
ond part. and in case of breach of any OF the
| conditions of said lease by the party Of sec
ond part, they covenant that the party OF the
first mart and their successors in oihce may
RENTER" In the body Of the lease the names
| of the Commissioners are not mentioned, and
| do not appear. The lease is signed by Y. ID.
Judd Commissioner and land agent, by Whit
ney aud Robertson by ii. E. Whitney, and py
| H. A, ?. Carter and j. $. Walker, Commls-
sioners of Crown Lands.
The act above referred to creates the office
| of the Commissioner Of Crown Lands. Sec
! ton declares that the lands by the act OF
June I. 1915 declared to he the private lands
! Of his Majesty Kamehameha III and which
| have descended to Kamehameha v, "shall be
| henceforth unalienable and shall descend TO
the heirs and successors of the Hawaiian
Crown forever" and that the said lands there
after cannot be leased for over thirty years.
Section provides that the Commissioners
| of Grown Lands shall have full power and
authority to make good and valid leases OF
the said lands for any number of years not
| eACeeQluH
! lawful to collect the rents on the same for
more than one year in advance, or to receive
anything in the nature of bonus for sign
ing the said lease, and all the rents, profits
and emoluments derived from the said lands,
after deducting the necessary and proper ex-
penses Of managing the same shall be for the
use and benefit Of the reigning Sovereign, and
! payable by the said Commissioners 10 the or
der Of the King, except when minor, and
| then invested as the Legislature shall direct
for his benefit; and except as provided by
| Section 5, which is now obsolete. Section 6
provides for the appointment by the King OF
the Board of Commissioners Of Crown Lands
to consist of three persons two of whom shall
be from the Kings Cabinet and serve without
any remuneration, and the other shall act as
land agent, and shall be paid out Of the rev.
enues of the said lands, such sum as may be
agreed by His Majesty, the King.
The action is brought by Bishop q Co.
against G. II. Judd, W. NJ. Gibson and j. M.
Kapena, Commissioners of Crown Lands, and
counts on the lease above quoted from and
AYERS that the defendants are successors in
Office Of the lessons therein named and that
said lessons covenanted by their successors in
office, whereby these defendants are bound
for a breach OF covenant, all forfeiture
for breach thereof having been waived by
these defendants. After trial and verdict foi
plaintiff on December lst, 1854, judgment was
entered that plaintiffs recover of said defend
ants $4,000 and costs. asg G.
From the law and facts as above de
tailed there can be no doubt that the defend
ants are officers appointed by His Majesty tc
perform their duty as Crown Land Commits
sioners which are specifically provided for by
law, and they are, and become thereby public
officers. "One standing and acting in a pub
lie capacity who makes contract in behalf Of
the public is not personally liable" SimonI
VS.. Hedrding, % Pick. 1904. lHacJedib VS.
Haldimand / T. h l72-lsl. Freeman VS.
Oils, 8 Mass. 272. F'uL,aR VS.. InhabilptS o
WeSi Brookfeld, 8 Allen Ia.
The facts that the funds are devoted spec.
tally to the use Of His Majesty, makes thG
Commissioners no less public officers. They
become and are the agents of the Government
to manage the property for the maintaining o
the royal state and dignity, and the Legisla.
ture assume and the King consents to TAX
away the right of alienation of the land for.
ever.
In the cases cited however, it is we'll set
tied that if the public agent by his interior
ence prevents the remedy against the Gov.
eminent he makes himself answerable; as
| ut tlEdseu ~ pay GApIGeSlN III MS ONu udlut
If we try the case at bar by this rule, w
find no personal agreement or any misconduc
on the part of these plaintiffs which render
them personally liable. They contract unde
the name which the appointment under tn
law gives them, that Of commissioners o
J Crown Land" and refer to that law for thei
authority, and contract for themselves ant
their successors, and execute only the lease
for the time and on the terms which the Law
authorizes, and directs, and requires them +
do The covenant on which they are sued
usual and proper covenant and does no
bind them personally but officially, and thei
individual property cannot be taken on tn
execution issued herein.
Had the plaintiffs given a personal lease
would have been void under the law, and til
lessees would have obtained no right under
save 10 sue at once the defendants PERSONAL
for damages for q breach of contract. Tn
evidence is plain that the lessees never in
tended to rely on the personal security of tn
plaintiffs or their predecessors.
In M1cbedfh VS.. HaldiDl1Hd. l I. II. 1e
above cited the Court say that "the fund OF
Fl, Of which the plaintiff was to be paid was th
Treasury" In ordinary cases Of the prope
, action OF public officers in contracts, the fun
, from which payment is to be sought is til
Government Treasury. 1t is not so in thi
case Here, by the appropriation of the Leg
islature, . large property is set apart to b
leased for the benefit of His Majesty, and tn
fund arising therefrom after deducting th
necessary and proper expenses of managin
the same, shall be paid over to the order {
the King. The act requires that the lease
:, shall be made and the fund shall be SO devoi
ed. The covenants in those leases are thei
necessary Accomplishments and the damage
for their breach are lien upon the funds arts
ing from their execution in the hands of th
Commissioners. The Legislature so intende
and Kamebameha V. consented to it and hi
present Majesty is bound by it.
Having tue fund arising from the lease
His Majesty must bear the burthen whic
comes from the breach of their covenants.
it were understood that such covenants coul
not be enforced, the proceeds of the leasiD
Of Crown Lands would be much diminished
The payment of the damages in this cas-
. must be made out Of those funds as they ar
: now or from time TO time come into the hand
of the Crown Commissioners, the defendants
Such payment is part of the necessary an
! proper expenses of managing" the said Ian
! and must be paid out of the fund. If sue
funds should be or hereafter come into til
hands Of said defendants, to the extent of ID
money SO secured they would be liable as 70
money had and received